Citation Nr: 1310239 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-06 314A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative changes of the left knee, to include as secondary to service-connected residuals of aseptic meningitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran served on active duty November 1964 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Saint Petersburg, Florida that denied the Veteran's petition to reopen the claim. The Veteran was afforded an April 2009 hearing before the undersigned. A transcript of the hearing is associated with claims folder. In January 2010, the Board reopened the claim and remanded the underlying service connection issue for additional development. The appeal returned to the Board in July 2012, where it was again remanded to provide adequate notification to the Veteran about scheduling a VA examination. A review of the Virtual VA paperless claims record shows that VA treatment records from July 2010 to December 2011 are on file. The RO considered these VA treatment records in a January 2013 Supplemental Statement of the Case. FINDING OF FACT A left knee disorder is not attributable to the Veteran's period of military service; no left knee disorder was caused or made worse by aseptic meningitis. CONCLUSION OF LAW The Veteran does not have a left knee disorder that is the result of disease or injury incurred in or aggravated by active military service or secondary to aseptic meningitis. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2012); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished for the issue being adjudicated on appeal. Through an April 2010 notice letter, the RO notified the Veteran and his representative of the information and evidence needed for the Veteran's claim of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the April 2010 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his claimed disability. The Veteran had an opportunity to submit information and evidence in light of this notice before subsequent adjudication by the agency of original jurisdiction in December 2011 and January 2013 Supplemental Statements of the Case. Consequently, a remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran's service treatment records and pertinent VA treatment records have been obtained and associated with the claims file, including a comprehensive report of all available VA treatment records. The Veteran was not afforded an adequate VA examination for his left knee disability. He was initially scheduled for a VA examination in September 2011. However, the Board determined that the record was unclear on whether he received adequate notice for the examination. The Board remanded the claim in July 2012 to reschedule it with appropriate notice. The same month, the Appeals Management Center (AMC) submitted an examination request and sent the Veteran a letter notifying him that his local VA facility would contact him shortly as to the time and place of the scheduled examination. Both actions are documented in the claims folder. In a September 2012 letter, the AMC notified the Veteran that the Tampa VA Medical Center informed them that he refused to have an examination at the scheduled location. The original correspondence from the Tampa VAMC is not of record. The letter from the AMC requested that the Veteran clarify as to whether he would be willing to report to another VA facility for an examination. To date, no response has been made. Absent evidence to the contrary, VA is entitled to the presumption of administrative regularity. Kyhn v. Shinseki, 24 Vet. App. 228, 238 (2011). The Veteran has submitted no evidence to rebut the presumption of regularity concerning notification of the initially scheduled examination or the September 2012 report that he contacted the facility and refused the examination. The record shows that the July and September 2012 letters were sent to the Post Office Box address of record for him. Although it appears he has a different address listed with the Veteran Health Administration (VHA) for shipping purposes, there is no indication that the address was incorrect. The Veteran has a responsibility to keep VA apprised of his whereabouts. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). He has not otherwise asserted good cause for failing to report to the scheduled examination. In this instance, the Board must presume the Veteran was properly notified about the VA examination and failed to appear without good cause. Kyhn, 24 Vet. App. at 238. Under 38 C.F.R. § 3.655, when a Veteran fails to report without good cause for an examination in a service connection claim, the claim will be rated based upon the evidence of record. The Board finds that the record reflects substantial compliance with its January 2010 and July 2012 Remands. The agency of original jurisdiction (AOJ) obtained a comprehensive report of VA treatment records and service treatment records. It provided adequate notification about how to substantiate the claim. The actions detailed above in scheduling the VA examination substantially complied with the July 2012 Remand instructions. The AOJ re-adjudicated the issue by way of a January 2013 supplemental statement of the case. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied and that there was substantial compliance with the terms of its July 2012 remand. See D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)); Stegall v. West, 11 Vet. App. 268 (1998). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, __ F.3d__, No. 2011-7184, 2013 WL 628429 (Fed. Cir. February 21, 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Degenerative joint disease is a chronic disability recognized under 38 C.F.R. § 3.309(a) and the continuity of symptomatology provisions are applicable. Id. Under 38 C.F.R. § 3.303(b), 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) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). If a chronic disorder, such as arthritis, manifests to a compensable degree within one year after separation from service, it may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, as will be discussed in detail below, the Board finds that degenerative changes in the left knee did not manifest until many years following service. Thus, the presumption is not helpful in this case. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability may be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Moreover, in general, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2012). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of the Veteran's claim. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2011)). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. VA made it clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the claimant. 38 C.F.R. § 3.310 (2006). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records show that the Veteran complained about sore feet and knees in November 1964. He was noted to have a history of infected feet and was assessed as having jungle rot. The Veteran underwent a separation physical examination in December 1968, which was several months prior to separation. Nonetheless, in his Report of Medical History for separation, the Veteran denied having a trick or locked knee. Contemporaneous Report of Medical Examination for separation showed that his lower extremities were clinically examined and deemed to be normal. From April 12th through May 6th 1969, the Veteran was hospitalized for aseptic meningitis. During inpatient treatment, no specific findings were made regarding his left knee. The Veteran underwent a general VA examination in May 1971. The orthopedic portion of the examination did not reveal any left knee abnormality. The Veteran had a VA neurology examination in January 1988. X-rays of the left knee were taken and were interpreted as normal. An X-ray taken in April 1995 revealed left knee joint effusion. In July 1996, the Veteran had a bone scan. It showed degenerative changes in his left knee. VA treatment records from February 1998 show that the Veteran had a gradual increase in bilateral knee pain. He did not recall any particular injury to his knees. The examiner assessed chronic left knee pain that had worsened over the past few months. She commented "no real injury, but possible medial meniscus tear." An MRI of the left knee was taken in April 1998. It showed advanced degenerative changes of the medial and lateral menisci without definitive evidence of a tear. In July 2006, the Veteran asserted that his left knee disability was related to meningitis residuals. The following month, his treating physician issued a statement that the Veteran was severely limited in physical activity due in part to bilateral knee pain. In October 2007, the Veteran stated that he injured his left knee after falling off a truck in Korea. The Veteran had a Board hearing in April 2009. He described his in-service knee injury. He was riding on the end of a truck. When the truck hit a bump, he fell off and injured his left knee. Although he sought medical attention, it was limited due to his location. He recalled that his knees were sore for about a month afterwards. He then developed instability and sought medical attention after service. He believed he was diagnosed with a hairline fracture sometime in the 1970s. He said that healthcare providers informed him the hairline crack was growing and necessitated operative intervention. The time and place he specified for this assessment was in 1987 at Tampa Hospital. He also asserted that spinal meningitis affected his left knee disability. In June 2010, the Veteran underwent a total left knee replacement. He then had a VA examination in August 2010. However, the examiner declined to clinically evaluate the left knee due to the recent surgery. The Veteran contends that his current left knee disability is either related to service or service-connected meningitis residuals. 38 C.F.R. §§ 3.303(b), 3.310. As an initial matter, the Board notes that arthritis was not confirmed until many years following service and presumptive service connection for arthritis is not warranted. 38 C.F.R. §§ 3.307, 3.309. Service treatment records show that the Veteran had complained about knee pain in the context of jungle rot. They do not otherwise show treatment for a specific left knee injury. As noted above, degenerative arthritis is a chronic disease recognized under 38 C.F.R. § 3.309. The alternative method of establishing service connection through a continuity of symptomatology under 38 C.F.R. § 3.303(b) is applicable. Walker v. Shinseki, __ F.3d__, No. 2011-7184, 2013 WL 628429 (Fed. Cir. February 21, 2013). Although a specific knee injury was not noted in service, the Veteran is competent to report about symptoms capable of lay observation, such as left knee pain. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. The Board considers him generally credible in his report. Madden v. Brown, 125 F. 3d 1447, 1481 (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."). Thus, an in-service event has been noted. Furthermore, he is also service connected for meningitis to establish a possible basis for a secondary service connection claim. 38 C.F.R. § 3.310. The record confirms that the Veteran has had severe degenerative changes in his left knee, which have necessitated a total left knee replacement. The issue therefore is whether his knee disability has a nexus to an in-service left knee injury or service-connected meningitis. The Veteran asserts that he has had continuous symptoms beginning in service. Walker v. Shinseki, __ F.3d__, No. 2011-7184, 2013 WL 628429 (Fed. Cir. February 21, 2013); 38 C.F.R. §§ 3.303(b), 3.309. While he is competent to describe his recollections of an in-service knee injury, he has not been shown to be a medical professional. In this case, the issue of whether his current left knee disability, demonstrated many years following service, is related to an in-service fall, to continued symptoms since service, or to service-connected meningitis is medical question beyond the capabilities of lay observation or common knowledge. See Woehlaert, 21 Vet. App. 456; see also Waters, 601 F.3d 1274. Thus, his assertions are not competent evidence to show a nexus to service or service-connected disability and in this regard, have no evidentiary value. Id.; see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The competent medical evidence in this case is limited to VA treatment records. Id. Review of these records does not show that any medical professional had indicated that the left knee disability is related to an in-service fall, to continued symptoms since service, or otherwise to an event, injury, or disease in service. Notably, when the Veteran had treatment for knee pain in February 1998, he described it as a gradual onset over the previous few years and did not relate it to a specific injury. See VA treatment records from February 1998. VA treatment records also do not suggest that the current left knee disability is in any way related to service-connected meningitis. In short, the competent medical evidence does not show a nexus. Without competent evidence of a nexus, the claim must be denied. 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.310. (Because of a lack of such evidence, a VA examination was scheduled, but the Veteran did not appear.) In accordance with the provisions of 38 C.F.R. § 3.655, the Board has adjudicated the case based on the available record. On that record, for the reasons set forth above, the preponderance of the evidence is against the claim. Service connection for a left knee disability is not warranted. ORDER Service connection for a left knee disability is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs