Citation Nr: 1310236 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-07 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for bilateral leg cramps. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1977. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). The issue of entitlement to service connection for bilateral leg cramps is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The probative evidence of record does not show that the Veteran's currently diagnosed bilateral knee disorder is related to his military service. CONCLUSION OF LAW Bilateral knee disorder was not incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the issue denied herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to initial adjudication of the Veteran's claim, the RO's May 2009 letter advised the Veteran of the foregoing elements of the notice requirements. 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 May 2009 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA outpatient treatment records, and his private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran was afforded an opportunity to testify at a June 2012 hearing before the Board. See 38 C.F.R. § 20.704 (2012). Furthermore, the Veteran was provided with a VA examination in connection with his claim for service connection for a bilateral knee disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In compliance with the Board's August 2012 remand, a VA medical opinion was obtained in September 2012 as to whether the Veteran's bilateral knee disorder was related to his service. The Board finds this VA examination adequate as it was based upon a complete review of the Veteran's claims file, clinical examination of the Veteran, and with consideration of the Veteran's statements, and the VA examiner provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board concludes that there has been substantial compliance with its August 2012 remand with respect to the issue decided herein. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this 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. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. 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); 38 C.F.R. § 3.303(d). Generally, in order to establish service connection for the claimed disorders, there must be (1) medical 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) medical 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). The Veteran contends that his current bilateral knee disorder had its onset during active duty service. Specifically, during the June 2012 hearing before the Board, he testified that while serving on tugboats, he fell and bumped his knees multiple times, which led to his current bilateral knee disability. He further asserted that he has experienced bilateral knee pain since service. In this regard, in a January 2010 statement, J.P., a fellow serviceman reported that he witnessed the Veteran fall and incur a red and bruised knee during active service. Furthermore, the Veteran's friends and family have submitted multiple statements dated in January 2003 through February 2006, indicating that the Veteran complained of bilateral knee pain since service. The Veteran's service treatment records, including his September 1974 induction physical examination and October 1977 separation physical examination, are negative for complaints, treatment, or diagnosis of a knee disorder. Indeed, on his October 1977 Report of Medical History for purposes of separation, the Veteran denied having a trick or locked knee or arthritis. Post-service private treatment records dated in February 2002 demonstrate the Veteran sought treatment from L.K., M.D., for bilateral knee pain which began one month prior to treatment. X-rays revealed minimal degenerative changes in both knees. Dr. L.K. noted that the Veteran may have a meniscus tear, bilaterally, as well as chondral lesions, bilaterally. A private treatment record dated in November 2005 shows the Veteran complained of increased bilateral knee pain since the 1990's; the diagnosis was degenerative arthritis of the right knee versus an inflammatory process. A private treatment record dated in January 2006 indicates a diagnosis of bilateral knee medial and patellofemoral degenerative arthritis. R.L., M.D., reported that he discussed with the Veteran the possibility that his time working on a tugboat during service "may" be a causative factor of his current bilateral knee disability; however, Dr. R.L. concluded that there was "no way" to objectively link the Veteran's degenerative osteoarthritic changes with such service. A private treatment record dated in August 2006 notes that the Veteran was aware that the earliest knee complaint in his chart was dated in July 1996. A VA outpatient treatment record dated in November 2008 includes a list which notes knee arthralgia and degenerative joint disease as active problems. Private treatment records dated in May 2009 through August 2009 demonstrate diagnoses of bilateral knee degenerative joint disease. Records also show that the Veteran underwent a left knee total replacement for osteoarthritis in May 2009. In a May 2009 private record, M.B., M.D., the Veteran's orthopedic specialist, noted that by history, there was no objective evidence that he could reference in order to relate the Veteran's current bilateral knee severe medial and moderate patellofemoral degenerative osteoarthritis to a previous injury; however, Dr. M.B. concluded that it was "possible" that the Veteran's three years serving on tugboats "may have exacerbated the development of osteoarthritis." A private treatment record dated in November 2010 indicates an assessment of left total knee replacement, with good results. A private treatment record dated in May 2012 indicates diagnoses of right knee gradual progressive osteoarthritis and left total knee arthroplasty, stable. In September 2012, the Veteran underwent a VA examination, during which he reported that he served in the U.S. Navy from 1974 through 1977. The Veteran reported that his duties during such service included working on tugboats for three years. The Veteran further reported that while there was no specific injury to his knees, he fell and bumped his knees on the boats many times. However, the Veteran noted that he did not seek treatment because he was busy all of the time. The Veteran reported that subsequent to service, he experienced knee pain from 1977 through 1985, that progressively worsened while working for the U.S. Postal Service. He also reported that he saw Dr. L.K. in 1985 for his knee pain. Upon examination and review of the Veteran's claims files, the examiner diagnosed bilateral knee degenerative joint disease and scar of the left knee due to total knee replacement. The examiner noted that Veteran's history of working on tugboats for three years while in service, and the his report of falling and bumping his knees many times, without seeking treatment. The examiner also noted that the Veteran reportedly saw his private physician in 1985 for his knee pain. The examiner indicated that the Veteran's reported history of falling on tugboats during service was a "possibility" but stated that he was unable to conclude that there was a relationship between the Veteran's current bilateral knee disability. In providing the opinion, the examiner noted that the Veteran's service treatment records, including his October 1977 separation examination report of medical history were negative for complaints of knee problems. In addition, the examiner also noted that there was a time span of more than 20 years post-discharge from service, when an initial diagnosis of degenerative joint disease of the Veteran's knees was documented. After reviewing the evidence of record, the Board finds that service connection is not warranted for a bilateral knee disorder. There are currently diagnosed knee disabilities, to include bilateral degenerative joint disease, status-post left total knee replacement, and left knee scar. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, the probative evidence of record does not show that the Veteran's current bilateral knee disorder is related to his active duty service. In January 2006, Dr. R.L. noted that he discussed with the Veteran the "possibility" that his time working on a tugboat during service "may" be a causative factor of his current bilateral knee disability but there was "no way" to objectively link his degenerative osteoarthritic changes with such service. In May 2009, Dr. M.B., noted there was no objective evidence that he could reference in order to relate the Veteran's current bilateral knee severe medial and moderate patellofemoral degenerative osteoarthritis to a previous injury, but concluded that it was "possible" that the Veteran's three years serving on tugboats "may" have exacerbated the development of his osteoarthritis. Regarding the aforementioned opinions, the use of equivocal language makes a statement by an examiner speculative in nature. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (finding that evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). Moreover, while these opinions were rendered by medical professionals, neither physician provided an explanation of the basis for such opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Accordingly, the Board attaches little probative value to these opinions. The September 2012 VA examiner, after examination of the Veteran, thoroughly reviewing the Veteran's claims file, and considering the Veteran's reported history and lay assertions, opined that he was unable to conclude that the Veteran's bilateral knee disorder was related to his service. In rendering this opinion, the examiner indicated that the Veteran's reported history of falling while working on tugboats during service was a possibility; however, he also noted that the service treatment records, to include the October 1977 separation examination report of medical history, were negative for any knee complaints. In addition, while the examiner noted that the Veteran reportedly sought treatment from his primary physician for his knees in 1985, eight years post-separation from service, he also noted that the evidence of record shows an initial diagnosis of degenerative joint disease more than 20 years post-separation from service. The Board accords a significant probative value to the September 2012 VA examiner's opinion because it was rendered by a physician and is supported by a well-reasoned rationale. To extent that the Veteran contends that his current bilateral knee disorder was caused by an in-service injury, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a bilateral knee disorder. In this regard, in certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). Lay statements are competent evidence regarding symptoms capable of observation and may provide sufficient support for a claim of service connection. Id.; see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the nature or cause of a bilateral knee disorder is not a simple question that can be determined based on mere personal observation by a lay person. The Board therefore finds that whether the Veteran's current bilateral knee disorder is related to or was caused by his military service does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown otherwise that the Veteran possesses the ability, knowledge, or experience to provide such an opinion, as opposed to observed continuity-of-symptomatology. 38 C.F.R. § 3.159(a)(2); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Accordingly, the Board finds that the Veteran's lay statements as to medical causation are not competent evidence to establish service connection for a bilateral knee disorder. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). In the absence of competent evidence of a knee disorder in service, evidence of arthritis within one year following separation from service, or competent and probative evidence of a nexus between the Veteran's current bilateral knee disorder and in-service duties, service connection is not warranted for the Veteran's bilateral knee disorder. The Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disorder. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral knee disorder is denied. REMAND When the Board last reviewed the case in August 2012, it noted the Veteran's contentions of experiencing longstanding muscle cramps since active service, as well as the October 1977 separation examination report of medical history, in which the Veteran indicated that he experienced bilateral leg cramps. The Board further noted that the Veteran's post-service private treatment records demonstrate complaints of leg cramps. The Board also noted the Veteran's June 2012 testimony; specifically, that he was told to take potassium for his cramps. As such, the issue was remanded for a VA examination because the medical evidence of record was unclear as to whether the Veteran had a diagnosed disability with respect to his leg cramps and/or whether such manifestations were part of a larger disability picture. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran underwent a VA examination in September 2012 during which he reported that the onset of his bilateral leg cramps was in basic training during service. He further reported that his leg cramps persisted since service to the present. Upon examination and review of the claims file, the examiner diagnosed bilateral leg cramps with onset in 1974. The examiner opined that the claimed condition was less likely than not incurred in service. In providing the opinion, the examiner noted, "his leg cramps not diagnosed." The examiner further noted that, "leg cramps not related to [degenerative joint disease]." The September 2012 VA examination is inadequate for the purposes of adjudicating the appeal. See Barr, 21 Vet. App. 303, 311 (2007). Specifically, the 2012 VA examiner indicated that a current bilateral leg cramp disability was not diagnosed; however, the examiner also stated that a current bilateral leg cramp disability was not related to the Veteran's degenerative joint disease. Further, although the examiner stated that he reviewed the Veteran's claims file, he did not discuss the October 1977 separation examination report of medical history, which notes the Veteran's report of bilateral leg cramps. Moreover, the examiner did not discuss the post-service treatment records which note the Veteran's complaints of leg cramps, to include a December 2007 private record which notes diagnoses of diabetes and leg cramps, and indicates that the leg cramps are not associated with the diabetes. As such, the Veteran must be afforded another VA examination to determine whether there is a current bilateral leg cramp disability, and if so, whether such disability had its onset in service or is otherwise related to service. As there has not been substantial compliance with the August 2012 remand directives, the case must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine the nature and etiology of any current leg cramps. The Veteran's claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies must be accomplished. Following a review of the evidence of record, a clinical examination, and with consideration of the Veteran's statements and lay statements, the examiner must state whether the Veteran's leg cramps constitute a disability and/or whether the manifestations are symptoms of another disability. If so, the examiner must provide an opinion as to whether the Veteran's disability is related to active military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If the benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs