Citation Nr: 1310035 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-33 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for osteoarthritis of the left knee, to include as secondary to service-connected disease or injury. 2. Entitlement to service connection for left hand numbness. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1993. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2010 rating decision of the VA Regional Office in Augusta, Maine. The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing in October 2010. The record contains a transcript of that hearing. This case was previously before the Board in January 2011 and was remanded for additional development. The RO has complied with the remand directives. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran has osteoarthritis of the left knee disability that was manifest to a degree of 10 percent or more within one year of his discharge from service. 2. The Veteran's left hand numbness was not manifest during service or within one year of separation from service. 3. The Veteran's left hand numbness is not attributable to service. 4. The Veteran's left hand numbness (causation or aggravation) is not attributable to a service-connected disease or injury. CONCLUSIONS OF LAW 1. Osteoarthritis of the left knee is presumed to have been incurred in wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Left hand numbness was not incurred in or aggravated by service and organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. Left hand numbness is not proximately due to, the result of, or aggravated by a service connected disease or injury. 38 U.S.C.A. 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in September 2009, October 2009, and February 2010 that fully addressed all notice elements. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, the Veteran was afforded VA examinations in July 2010, January 2007, August 2007, and October 2008. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection claims Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Holton element is through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Section 3.303(b) applies to an enumerated list of chronic diseases. Arthritis and organic disease of the nervous system are included. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309. That an injury incurred in service alone is not enough to warrant a grant of service connection. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). A disability which is proximately due to or the result of a service-connected disease or injury (including the treatment therefore) shall be service connected. 38 C.F.R. § 3.310 (2012). The Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.310(a) should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (additional disability resulting from aggravation of a nonservice- connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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. Osteoarthritis of the left knee The Veteran contends that he has osteoarthritis of the left knee disorder that was incurred during active service, or alternatively, aggravated by a service-connected disorder. Osteoarthritis of the left knee was manifest within one year of his separation from service. Therefore, his claim of service connection is granted. Service treatment records show that in May and June 1978, the Veteran complained of numbness in both legs. In August 1978, he indicated that he had parasthesias in both knees extending to the both great toes with onset subsequent to spinal anesthesia administered for a circumcision procedure in 1977. He received treatment for right knee pain and swelling after playing basketball in December 1989. In January 1990, a clinic note reflects that the Veteran complained of having unspecified knee pain while running. The physician assessed chronic pain of the right knee with a history of knee injury less than two years before. No specific left knee complaint, treatment, or finding was noted during the Veteran's 20-year period of service. When examined in March 1993 for retirement from active duty, the lower extremities were evaluated as normal. The Veteran denied a knee problem and no left knee defect was noted. The Veteran was afforded a VA examination in October 1994. On general medical examination, he reported several joint problems, including the right knee, but did not refer to left knee symptoms. The examination report showed that he had full range of motion of all joints and no bone or joint abnormality. No left knee findings or diagnoses were recorded. An October 1994 x-ray of the left knee shows a mild loss of medial joint space, but otherwise unremarkable. The radiologist found this was consistent with mild osteoarthritic changes. In a November 1994 rating decision, the RO granted service connection for a right knee disability. Private clinical records from Carolina Pines Regional Medical Center indicated that the Veteran underwent a right total knee replacement in July 2008 for right knee degenerative arthritis. Upon 12-month follow-up in July 2009, it was noted that the Veteran had some discomfort in the left knee. An x-ray of the left knee disclosed a two-millimeter joint space and moderate arthritis, but alignment was excellent. The assessment showed that because of the left knee, there was 20 percent lower extremity impairment that was equivalent to eight percent whole body impairment in accordance with American Medical Association guidelines. The Veteran underwent a VA joints examination in July 2010. He reported that his left knee began hurting in service after he slid onto base while playing softball in 1979 or 1980. He stated that he skinned the left knee but was able to finish the game and did not seek medical attention although he limped for a few days. The Veteran related that the knee really began to hurt in 1989, and that he complained of pain in both knees but examiners always referred to the right knee. On physical examination of the left knee, range of motion was from 0 to 130 degrees. No other abnormal findings were elicited. Radiographs of the left knee disclosed mild spurring of the tibial spines and some mild narrowing of the joint intervals medially and laterally with some mild patellofemoral changes. A diagnosis of mild degenerative joint disease, left knee, was rendered. The examiner opined that it is less likely as not that the left knee disorder is related to the service-connected right knee disorder. Specifically, he stated that it would be unlikely that the left knee would be significantly altered due to favoring over the right knee in the short term. He noted that the left knee does have some mild degenerative changes that would have been accrued over a long period of time. The examiner commented that although the Veteran noted in his history that there might have been documents indicating a left knee condition on exit interview from service, "I am not able to find these in his C-file today." It was added that "if there was evidence that his left knee condition began in service, it may be that this is a service-connected condition." The examiner concluded by reiterating that his left knee disorder is not related to his right knee disorder. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in October 2010. He testified that that during service he participated in a number of sports in which he injured the left knee but no injury was serious enough to seek medical attention. He further stated that within one year of discharge from service, he would not have been able to run due to his left knee, as it would have swollen up and become stuff and painful. The Veteran related that he had pain in both knees at service discharge, and indicated that in paperwork he submitted prior to post service VA examination, he identified both right and left knee symptoms. However, he acknowledged that his service treatment records do not show any complaints of left knee pain. The Veteran underwent a VA examination in August 2011. The Veteran reported that his left knee pain began in service, specifically while he slid into a base playing softball in the late 1970's. He stated that he regularly sought treatment for complaints of knee pain, but the physicians always focused on his more severe, right knee disorder. The Veteran also stated that as he was taking anti-inflammatories for his right knee, he did not specifically seek additional treatment for his left knee as well. The examiner diagnosed severe degenerative arthritis of the left knee. The examiner opined that it is less likely than not that his left knee disorder is related to service. As a rationale, the examiner stated that there were no complaints of left knee pain documented in service and there were no injuries that predisposed him to the degenerative process. However, the examiner also opined that the severe degenerative arthritis of the right knee and the Veteran's lumbar spine disorder facilitated his left knee disorder and aggravated his osteodegenerative arthritis of the left knee by 50 percent. Another VA opinion was issued in October 2012, because the RO found the August 2011 examination to be deficient in that the examiner opined that the Veteran's left knee disorder was aggravated by his service-connected disorders but failed to provide a baseline for the left knee disorder prior to the aggravation and did not provide a rationale for the opinion. The October 2012 examiner performed a full review of the claims file and reiterated all previous VA opinions. He opined that the Veteran's left knee arthritis is less likely than not incurred as a result of service. He further opined that the Veteran's left knee arthritis was less likely than not proximately due to or the result of the Veteran's service connection right knee degenerative arthritis or degenerative disc disease of the lumbar spine. As a rationale, the examiner noted that the Veteran's active duty records were without complaints or evaluation related to the left knee. Additionally, "both the Veteran's knees played basketball with the high impact associated and have experienced the same age related degeneration. The Veteran's right knee suffered an injury during service and developed degenerative joint disease earlier as a result. The left knee did not. " Furthermore, "the literature supports the concept of secondary osteoarthritis - of degenerative joint disease that is not simply age related degeneration but which is instead caused by an injury or a genetic predisposition or joint malalignment, but it does not consider osteoarthritis in another joint as a secondary cause of osteoarthritis." Upon review of the evidence of record, the Board finds that the more probative evidence is the October 1994 x-ray which shows mild osteoarthritic changes to the left knee. Although the VA examination was for the Veteran's right knee and no left knee diagnoses were found upon clinical examination, the Board has no basis for finding that the x-ray was not of the Veteran's left knee. Therefore, as there is radiographic evidence of arthritic changes within one year of service and arthritis is a chronic disease subject to presumptive service connection if manifested within one year of discharge from service, the Veteran's claim is granted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board also notes that since the AOJ has accepted that there was arthritis in another joint, the identification in this joint established that there was involvement of two or more joint; thus compensable. To the extent that the Veteran claims, and the evidence supports, a theory of service connection for aggravation of the left knee arthritis by the Veteran's service-connected degenerative osteoarthritis of the right knee, as stated above, service connection is warranted on a presumptive basis and therefore, a discussion of other theories of compensation is unnecessary. Left hand numbness The Veteran asserts that he has left hand numbness related to service. The preponderance of the evidence is against the claim in that it shows that his left hand numbness is secondary to his non-service connected cervical spine disorder. The preponderance of the evidence is also against finding that the Veteran's left hand numbness is directly or presumptively incurred during service. Therefore, the Veteran's claim is denied. Service treatment records show that in December 1989, he sought treatment for complaints of pain in the left mid forearm after he fell playing basketball. Examination of the left arm disclosed gross deformity of the distal radius and ulna. An X-ray was interpreted as showing a comminuted fracture of the distal ulna and radius with dorsal angulation. Service treatment records also reveal that the Veteran was seen in July 1992 and March 1993 with a palpable mass on the volar/radial aspect of the left wrist diagnosed as ganglion cyst. On the latter occasion, the clinical plan was recorded as aspiration and injection. It was noted that surgical excision was indicated if it returned. Records from Moncrieff Army Community Hospital dated in May 2003 reflect that the Veteran was seen for recurring pain from cervical fibers of the left trapezius radiating down to the ulnar side of the left upper extremity with numbness of the last three digits of the left hand. Magnetic resonance imaging of the cervical spine was performed that was interpreted as showing generalized degenerative disc disease involving essentially the entire cervical spine manifested by disk narrowing, and posterior bulge at each level, most advanced at C5-C6 and C6-C7, with mild central canal stenosis and mild neural foraminal narrowing most advanced at C-5-C6 and C6-C7, the left more than the right. The Veteran was afforded a physical examination at Florence Neurosurgery and Spine in July 2003 with a chief complaint of numbness in the left hand little finger with extreme pain, now improved. Diagnoses following examination included cervical spondylosis, possible radiculopathy less likely, and possible left tardy ulnar palsy. Clinical records from Carolina Pines Sports Medicine and Rehabilitation reflect that the Veteran was seen in July 2003 with complaints of the onset of neck pain with left upper extremity neuropathy in May 2003. He stated that he was lifting weights when he noticed a 'strain' and said that when he woke up the next morning, he had numbness in three digits of the left hand and soreness in the left shoulder blade region. He also reported pain in the palm region of the left hand. It was reported that, according to the Veteran, there was disc protrusion present on magnetic resonance imaging at the level of C6-7. A claim of entitlement to service connection for pinched nerve/nerve damage of the neck with numbness of the left hand was received in July 2009. In a January 2010 rating decision, the RO denied the Veteran's claim of service connection for a cervical spine disorder with left hand numbness. In June 2011, a Board decision denied the Veteran's claim of service connection for a cervical spine disorder and remanded the claim of service connection for left hand numbness for additional development, specifically to determine if service connection for left hand numbness was warranted on a direct basis. The Veteran underwent a VA examination in August 2011. The Veteran reported that he was unsure if he had any left hand complaints present in service, but the numbness and tingling began in 2000, at which time he was told it was due to his cervical spine disease. Imaging and nerve conduction studies revealed cervical spine disease and radiculopathy into the left hand in the early 2000s. The Veteran denied any injury to the left hand during service. The examiner diagnosed left hand decrease in grip strength and sensory abnormalities from cervical spine radiculopathy. The examiner opined that his claims file documents a cervical spine radiculopathy and parasthesias of the left hand during service. Therefore, the examiner opined that is as least as likely as not that his left hand complaints were due to service. In October 2012, a clarifying VA opinion was issued. The October 2012 examiner noted that the August 2011 examiner incorrectly cited records as service treatment records, when, in fact, the records were actually post-service treatment records. Specifically, the August 2011 examiner found that the Veteran's cervical spine radiculopathy and parasthesias of the left hand were found in service. Instead, these records are from the early 2000's and the Veteran was discharged from service in 1993. The October 2012 examiner opined that the Veteran's left hand numbness is caused by his cervical radiculopathy and remains as a residual status post cervical spinal C7-T1 fusion from the Veteran's degenerative joint disease and degenerative disc disease of the cervical spine. Therefore, the examiner concluded that the left hand numbness is less likely than not incurred in or caused by an in-service injury, illness, or event. As a rationale, the examiner cited that the Veteran's active duty medical records are without complaints or evaluations related to a cervical spine disorder or left hand numbness. The Board finds that the preponderance of evidence is against the Veteran's claim of service connection. As there is no evidence that the Veteran's numbness in the left hand was manifest to a compensable degree within one year of his discharge from service, presumptive service connection for a disease of the nervous system is not warranted. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Regarding the Veteran's theory of service connection as due to an in-service injury, the October 2012 examiner found that the Veteran's left hand numbness is caused by his cervical radiculopathy. This opinion is supported by the findings of the August 2011 and October 2010 VA examiners, as well as his treatment records. As per the June 2011 remand directives, the October 2012 examiner specifically considered the in-service treatment records related to the January 1992 left wrist ganglion cyst and his history of broken bones and declined to opine that his current numbness was incurred as a result of service. Although the examiner did not specifically state that his in-service complaints were unrelated to his current left hand numbness, the opinion is clear in establishing the etiology of the currently diagnosed disorder as secondary to the cervical spine disorder. This opinion is supported by the treatment records and the prior VA opinions. Therefore, as the left hand numbness has been found to be secondary to the cervical spine disorder which is not service-connected, the Board finds that the preponderance of evidence is against the Veteran's claim of service connection for left hand numbness on a direct or secondary basis. The benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57 (1991). Lastly, the provisions of 38 C.F.R. § 3.303(b) do not assist the appellant. An organic disease of the nervous system was not "noted" during service. ORDER Entitlement to service connection for osteoarthritis of the left knee is granted. Entitlement to service connection for left hand numbness is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs