Citation Nr: 1310902 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-18 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from June 1966 to December 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, a video conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in November 2009, April 2011, and May 2012 so that VA opinions could be obtained regarding whether the Veteran's left knee arthritis was related to service, or caused or aggravated by, a service-connected left foot disability. It was returned to the Board for appellate consideration. FINDINGS OF FACT 1. No injury, disease, or chronic symptoms of a left knee disorder were manifested during service. 2. The Veteran did not continuously manifest symptoms of degenerative joint disease of the left knee in the years after service. 3. Degenerative joint disease of the left knee was not manifested to a degree of ten percent within one year of service separation. 4. Degenerative joint disease of the left knee is not caused by any in-service event. 5. Degenerative joint disease of the left knee is not caused by, or increased in severity beyond the natural progress of the disease by a service-connected disability. CONCLUSION OF LAW Degenerative joint disease of the left knee was neither incurred in nor aggravated by service, nor may it be presumed to have been incurred therein, and is not caused or aggravated by a service connected disease or disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(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 of any information, and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. A March 2006 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. A November 2009 letter informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for several VA examinations and addendums to those examinations pursuant to the remands by the Board. These examinations, taken together, are found to be adequate for rating purposes. In this regard, it is noted that the examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding whether the left knee disability was related to the Veteran's service or to his service-connected foot disability. Although the Veteran's representative has argued that the opinion rendered in the most recent VA examination addendum, in September 2012 is based upon an inaccurate premise in that the examiner found that the Veteran did not have current disability associated with the left foot disorder for which service connection has long been established, the Board finds this premise to be acceptable, given the lack of objective symptomatology of the left foot demonstrated therein. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection for Degenerative Joint Disease of the Left Knee The Veteran contends that service connection is warranted for degenerative joint disease of the left knee. He asserts in correspondence and in testimony during the Board hearing in March 2009, that he sustained an injury of his left knee while in service, although he did not seek treatment for the injury at that time. Alternatively, it is asserted that the Veteran's service-connected left foot disability either caused or aggravated the left knee arthritis. Service connection is in effect for the residuals of a left foot injury, rated 10 percent disabling since the initial grant of service connection effective in January 1971. After review of the record, the Board finds that no disease or chronic symptoms of a left knee disorder were manifested during service. In this regard, the Board has reviewed the Veteran's STRs and finds that, despite complaints of other orthopedic disorders such as the left foot and low back, there are no references to knee complaints. On examination for separation from service, in December 1969, clinical evaluation of the lower extremities was normal. The Veteran has asserted that he did, in fact, sustain an injury of the left knee while he was in service. During the March 2009 Board hearing, he stated that he had sustained a left knee injury at the same time he sustained the left foot injury for which service connection has been established. In addition, he testified that he had sustained an injury of his left knee during basic training for which he briefly sought treatment. In a November 2012 statement, consideration by the RO in the first instance of which has been waived by the Veteran's representative, he stated that he did not seek further treatment for this injury because it could result in him having to repeat basic training. While the Board does not doubt the Veteran's statements regarding the incurrence of an injury, it is noted that the Veteran has not stated that he had complaints of chronic left knee symptoms since service. As such, there is no basis to find that these injuries caused chronic disability. The Board further finds that the Veteran did not continuously manifest symptoms of degenerative joint disease of the left knee in the years after service. As noted, on examination for separation from service, clinical evaluation of the lower extremities was normal. The Veteran submitted a claim of service connection for disabilities in January 1971, but that claim did not include the left knee. VA orthopedic examinations for the Veteran's left foot in 1971, 1975, and 1981 did not include complaints related to the left knee. This suggests to the Board that there was no pertinent left knee symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a left knee disorder, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not have chronic left knee symptoms as a result of an injury in service. The Board finds that degenerative joint disease of the left knee was not manifested to a degree of ten percent within one year of service separation. As noted, the Veteran did not have complaints relative to the left knee during VA examinations in 1971, 1975, and 1981. Medical records from a private physician show that in January 1999 the Veteran was seen for complaints of left knee pain. He stated that he had been having pain for years with cracking and popping for years and now posterior/medial joint pain. An MRI scan demonstrated a posterior horn medial meniscal tear and a parameniscal cyst over the dorsal aspect of the posterior horn suggesting a posterior horn meniscal tear. X-ray studies were essentially normal. The Veteran underwent a diagnostic left knee arthroscopy in February 1999 that showed no meniscal tear, but loose bodies of the left knee, Grade II-III chondromalacia of the medial femoral condyle of the left knee, and synovial plica of the left knee. Follow-up examination showed he was doing "fantastic," with pain only over the area of the two inferior portal sites. There was no pain, catching sensations, or significant crepitus and the Veteran had full range of motion of the knee. The Board finds that degenerative joint disease of the left knee is not caused by any in-service event. Review of the record shows several medical opinions regarding whether the Veteran's low back disability is related to service. In a March 2006 statement, a VA examiner noted an impression of evidence of degenerative joint disease along the articular margins of the left knee joints, evidence of periosteal thickening in the proximal fibula, questionable old posttraumatic changes and some evidence of sclerotic changes in the upper tibial shaft. The diagnosis was degenerative joint disease of the left knee that was less likely than not caused by or the result of the Veteran's military service (service-connected left foot injury). In a September 2007 supplemental examination the same examiner noted the Veteran's history of conservative treatment for left foot pain during service. The examiner reviewed the Veteran's medical history in detail, including the findings of the arthroscopic surgery performed in February 1999, and complaints of pain in the left foot on prolonged walking or standing. The pertinent diagnosis was degenerative joint disease of the left knee, postoperative status medical meniscectomy and debridement with residual chondromalacia grade III, less likely than not related to injury during active military service. The rationale was that there was no record of treatment of the left knee during service and the first available records indicating a left knee problem were over 29 years after the Veteran left active duty. In a June 2007 statement, the private physician who performed the Veteran's arthroscopic surgery indicated that the Veteran had reported a history of having injured his left knee at the same time he had sustained a left "wrist" injury 30 plus years ago. The examiner stated that, as the injuries had occurred at the same time, they could be related. The examiner noted that the Veteran walked with a slight limp that the Veteran stated was more from the foot injury he had sustained. There was some spurring in the midfoot from the previous fracture that he had reported. The assessment was left knee injury, most likely secondary to military actions 30 plus years earlier. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). The positive nexus opinion rendered by the Veteran's private physician was based upon the inaccurate premise that the Veteran had sustained a chronic injury of the left knee at the same time that he sustained his left foot injury. (The examiners reference to a wrist injury is considered by the Board to be a typographical error.) As previously noted, there is no record of such an injury and, while the Veteran has consistently contended such an injury occurred, there is no indication that it resulted in chronic disability. The opinion of the VA examiner, that the absence of clinical treatment records for approximately 29 years after active duty is probative evidence against continuity of symptoms since service is more persuasive to the Board. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (The absence of clinical documentation of a disability for many years after service is probative evidence against a service relationship.) The Veteran's final contention is that service connection is warranted as secondary to the Veteran's service-connected left foot disability. Several medical opinions regarding this possibility have also been associated with the claims folder. In an October 2010 report, the private physician who had treated the Veteran in 1999 again related the belief that the chondromalacia and loose bodies in the left knee had most likely resulted from an injury sustained in service and that the Veteran had also fractured his left foot at the same time and had been limping ever since. The examiner noted that the Veteran had walked with an abnormal, antalgic gait in 1999 and continued to have such a gait, which was likely the result of the chronic foot problem. He concluded that the gait pattern had forced the knee to progress in terms of pain and so the knee disorder was believed to be military related. A second private doctor also submitted an October 2010 statement indicating that he disagreed with the assessment that the Veteran's left knee pain was not related to military service. It was noted that the Veteran had walked with a decided limp since sustaining the foot injury and that this abnormal gait had resulted in the foot problems that directly related to the worsening knee pain on the left. The doctor went on to state that it was obvious that a chronic foot problem can and usually did end up affecting load bearing joints in the same extremity. Review of the records shows that the examination reports from VA examinations in 1971, 1975, and 1981 do not document a gait abnormality, although the Veteran did state in 1981 that he favored his left lower extremity. On VA examination in June 2011, the Veteran's treatment records were reviewed, with the examiner noting that, while he had been treated at VA since 2000, the Veteran did not receive treatment for gait training until physical therapy notes in 2006 and 2007. At that time, the gait was described as being not antalgic. While a previous examination in 2005 had described the Veteran's gait as being antalgic, a follow-up evaluation in March 2006 described the gait as being stable, smooth, and symmetric. On September 2007 examination, the Veteran's gait was described as being slightly widened base, antalgic favoring the left. Reports of the 1971 and 1981 VA examinations were noted to show no complaints of left knee disability and the only indication of gait abnormality was found in the 1981 report with the Veteran reporting a belief that favoring the left foot and ankle had put pressure on the back. The examiner believed that the back disability was not the result of gait abnormality, but due to an abnormal stretching maneuver that the Veteran performed while delivering mail from a vehicle. The examiner further noted the Veteran's medical history of left foot injury during service, without evidence of a left knee injury. The diagnosis was left foot strain, degenerative joint disease of the left knee and postoperative left knee debridement. The examiner opined that the Veteran had actually been service connected for a disability that had no relationship with service. The record, including statements made by the Veteran on this examination, were that the Veteran had sustained a left foot sprain that resolved in one weeks time. X-ray studies of the left foot in March 1971 and all subsequent X-rays of the foot were normal. After contesting the basis of service connection for the left foot disorder the examiner went on to state that, no matter what the cause of the left foot pain, degenerative joint disease of the left knee did not result from an abnormal gait. The rationale for this opinion was a cite to the American College of Rheumatology and the fact that the medical opinions that related the Veteran's left knee arthritis to the left foot disability were based on incorrect facts. As such, the left knee disability was not secondary to service-connected left foot sprain and abnormal gait. In a September 2012 addendum to the June 2011 examination report, the examiner again conducted an exhaustive review of the Veteran's medical records. It was opined that the Veteran did not currently have a foot disorder that could result in aggravation of a left knee disability. The Board finds that degenerative joint disease of the left knee is not caused by, or increased in severity beyond the natural progress of the disease by a service-connected disability. As pointed out by the June 2011 VA examiner, the Veteran's private doctors, who opine that there is a secondary relationship between the Veteran's service-connected left foot disability and left knee arthritis, base their opinions, in part, on the incorrect history of a serious left knee injury while the Veteran was on active duty. Such an opinion is considered of less probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993); LeShore v. Brown, 8 Vet. App. 406 (1995). The opinions that do not support a secondary relationship are based upon an extensive review of the Veteran's medical records, which include the fact that the Veteran did not exhibit any gait abnormality until many years after service and that no increase in the disability associated with the service-connected left foot disorder have been documented since the initial award of compensation. As such, the Board finds that the probative evidence of record does not support service connection for degenerative joint disease of the left knee. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for degenerative joint disease of the left knee, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for degenerative joint disease of the left knee is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs