Citation Nr: 1311067 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 07-27 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disorder, claimed as secondary to service-connected disability. 2. Entitlement to service connection for a renal disorder, claimed as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1966 to May 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2007 and January 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board in December 2010 and September 2012 and remanded for additional development. In regard to the appellant's claim for service connection for a left knee disorder, for the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remands and will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a renal disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a left knee disability that is related to service or that was caused or aggravated by a service-connected disability. CONCLUSION OF LAW A left knee disability was not incurred in or aggravated by active service, may not be presumed to have been so incurred or aggravated, and is not the result of or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Prior to the initial adjudication of the appellant's claim, appropriate notice was provided in March 2006. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded October 2006 and February 2011 medical examinations and a September 2012 opinion to obtain an opinions as to whether the appellant's left knee disability was the result of service or related to a service-connected disability. As discussed below, the October 2006 VA opinion is inadequate. However, the February 2011 and September 2012 opinions were rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination and opinion are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board also finds that the February 2011 examination and September 2012 opinion were completed in compliance with the Board's previous remands. 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). Arthritis is listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." In addition, 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. During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006), to implement the decision in Allen v. Principi, 7 Vet. App. 439 (1995), which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. o whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). III. Analysis The appellant contends that he is entitled to service connection for a left knee disorder, to include as secondary to service-connected disabilities. For the reasons that follow, the Board finds that service connection is not warranted. The appellant contends that his left knee disorder is secondary to his service-connected right knee disorder. See February 2006 claim. The appellant is currently service-connected for low back strain with degenerative changes, internal derangement of the right knee, diabetes mellitus, peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, cardiac disease status post four-vessel coronary artery bypass surgery, and residuals of a scar on the right hand. A February 2011 VA examination report reflects that the appellant has a current diagnosis of left knee degenerative joint disease, confirmed by an X-ray studies. Thus, the appellant has a current left knee disability for VA purposes. The remaining question is whether the appellant's left knee disability is related to service or caused or aggravated by a service-connected disability. A January 1966 enlistment examination report reflects that the appellant's lower extremities were normal. In a January 1966 report of medical history, the appellant denied having had a "trick" or locked knee. The appellant's service treatment records do not reflect that he had any complaints relating to a left knee disorder during service. An April 1973 separation examination report reflects that the appellant's lower extremities were normal. In an April 1973 report of medical history, the appellant noted a history of swollen or painful joints and having a "trick" or locked knee. The report noted that the appellant sprained his right knee in 1966 and it occasionally ached. No left knee complaints or symptoms were noted. An October 2006 VA examination report reflects that the appellant reported that he slipped and injured his right knee in service. He reported that he had pains in his left knee 6 to 7 times per year lasting 2 weeks at a time. He reported the pain was usually aggravated by stepping wrong or increased walking. The assessment was left knee degenerative joint disease. The VA examiner stated that it was his opinion that the appellant did not have that much left knee pain so it was less likely than not related to his right knee condition. The examiner did not provide a full rationale for the opinion. Thus, the opinion is inadequate and lacks probative value. An October 2007 VA treatment record noted that the appellant had chronic left knee pain. The February 2011 VA examination report reflects that the appellant reported that he started having left knee pain approximately 2 1/2 to 3 years ago. The appellant had insidious onset of knee pain with no history of injury or trauma. He recalled being seen by his primary care physician for bilateral lower leg pain that he stated was diagnosed as neuropathy. He was not seen specifically for his left knee. The examiner found the appellant had left knee degenerative joint disease, confirmed by an X-ray. The February 2011 VA examiner opined that the appellant's current left knee condition was not due to military service. The examiner noted that the appellant's separation physical showed no complaints in relation to the left knee. There were complaints related to the right knee only. The record was silent in regard to complaints or treatment for the left knee. Based on the evidence available, the examiner opined that the appellant's current left knee condition was not due to military service. The examiner further stated that there was nothing in the current orthopedic literature demonstrating that intrinsic conditions of one knee would cause intrinsic conditions within the contralateral knee. As noted in the September 2012 remand, the examiner did not address whether the appellant's left knee was aggravated by a service-connected disability. Thus, the February 2011 VA opinion is inadequate in regard to the issue of whether the appellant's left knee is secondary to a service-connected disability. In a September 2012 opinion, the VA examiner stated that there was nothing in the current accepted, peer-reviewed, credible, and authoritative orthopedic/medical literature that demonstrates that an intrinsic knee condition (degenerative joint diseases) would be caused by diabetes mellitus with or without peripheral neuropathy, cardiac disease with or without coronary artery disease with or without bypass grafting, a lumbar spine condition, or a contralateral knee condition with or without altered gait. He also stated that there was no evidence of aggravation (as defined for VA purposes) of the left knee due to the service-connected conditions. He noted that there was nothing in the currently accepted, peer-reviewed, credible, and authoritative orthopedic literature that the above mentioned conditions would cause aggravation (as defined for VA purposes) of a knee joint. As the VA examiner provided a rationale for his opinions, the Board finds the February 2011 and September 2012 opinions to be probative. In regard to the appellant's contention that his left knee disability is the result of a service-connected disability, including his right knee disability, the Board finds that the preponderance of the evidence is against causation. Although a lay person may be competent to report the etiology of a disability, degenerative joint disease of the knee is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by X-rays, the Board finds that the probative value of any such opinion is outweighed by that of the February 2011 and September 2012 VA examiner's opinions. The VA examiner has education, training and experience in evaluating the etiology of a knee disability. In the February 2011 opinion, the examiner noted that there was nothing in the current orthopedic literature demonstrating that intrinsic conditions of one knee will cause intrinsic conditions within the contralateral knee. The September 2012 opinion reflects that there was nothing in the currently accepted, peer-reviewed, credible, and authoritative orthopedic/medical literature that demonstrated that an intrinsic knee condition (degenerative joint disease) would be caused by diabetes mellitus, cardiac disease, a lumbar spine condition or a contralateral knee condition with or without altered gait. The September 2012 VA examiner found the left knee condition was not secondary to the appellant's service-connected conditions. As the Board finds that the appellant is not competent to provide an opinion as to the etiology of a left knee disability, the Board puts more weight on the findings of the September 2012 VA examiner. The Board also finds that there is no evidence of aggravation of the appellant's left knee disability due to the appellant's service-connected conditions. The September 2012 examiner found that there was nothing in the currently accepted, peer-reviewed, credible, and authoritative orthopedic literature that that appellant's service-connected conditions would cause aggravation (as defined for VA purposes) of a knee joint. The examiner opined that the left knee condition was not aggravated by the above mentioned service-connected conditions. The appellant has asserted that his left knee disability is secondary to his right knee disability. However, as discussed above, degenerative joint disease of the knee is not the type of disability subject to lay opinion as to the etiology of the disorder. Thus, the appellant is not competent to state that his left knee disability is aggravated by his right knee disability. The Board finds the September 2012 VA opinion to be more probative. The record does not reflect that there is any additional left knee disability that may be the result of aggravation of the left knee by the appellant's service-connected disabilities. Consequently, the Board finds that the preponderance of the evidence is against a finding of aggravation of the left knee disability by a service-connected disability. In sum, the evidence fails to demonstrate that the appellant's left knee disability is proximately due to, the result of, or aggravated by, a service-connected disability. Service connection on a secondary basis is not warranted. See 38 C.F.R. § 3.310. Although the appellant has not specifically asserted that his left knee disability is related to service on a direct basis, the Board has also considered direct service connection. As noted above, the appellant's service treatment records are silent for any complaints or injuries relating to the left knee. Although the appellant noted that he had a "trick" or locked knee in the April 1973 report of medical history, the report noted that he was referring to the right knee. The appellant's service treatment records note that he complained of pain in his right knee, but no left knee complaints or symptoms were noted. The October 2006 VA examination report indicates the appellant reported that he injured his right knee in service. The record does not reflect that the appellant reported injuring his left knee in service. At the February 2011 VA examination, the appellant reported that he started having left knee pain approximately 2 1/2 to 3 years ago. The appellant did not report a history of injury or trauma. The evidence is against a finding of a nexus between the appellant's left knee and service. The February 2011 VA examiner opined that the appellant's current left knee condition was not due to military service. The examiner noted that the appellant's separation physical showed no complaints in relation to the left knee. The complaints related to the right knee only. He also noted that the record was silent in regard to complaints or treatment for the left knee. In the September 2012 VA opinion, the examiner also opined that the appellant's left knee condition was not directly related to military service. The appellant himself has not directly argued that his left knee disability is related to service. He has not asserted that he had symptoms of left knee pain since service and he reported that the left knee pain did not begin until many years after service. The evidence also does not show any arthritis of the left knee within one year of the appellant's May 1973 discharge from service. The appellant has not alleged such. The Board finds that the appellant's right knee osteoarthritis did not manifest within one year of service. 38 C.F.R. § 3.307, 3.309. Consequently, the Board finds that the appellant is not entitled to service connection on a direct-incurrence basis. As such, the Board finds that the preponderance of the evidence is against the appellant's claim on secondary and direct grounds. Consequently, the benefit-of-the- doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a left knee disorder, claimed as secondary to service-connected disability, is denied. REMAND In regard to the appellant's claim for service connection for renal disease, to include as secondary to his service-connected disabilities, the Board finds that there has not been substantial compliance with the mandates of the September 2012 remand. In the remand, the Board noted that it had previously requested that the RO obtain medical opinions that would specifically address the question of whether the appellant's service-connected disabilities played any etiologic role in the development of the claimed conditions, including by way of aggravation. Neither examiner addressed the question of aggravation. Consequently, the Board remanded the claim for another VA opinion addressing the issue of whether the appellant's service-connected disabilities aggravated the left knee disability. Another opinion was obtained in September 2012. Although the VA examiner addressed whether the appellant's renal disease was due to or the result of the appellant's service-connected condition, he did not specifically address whether the appellant's renal disease was aggravated by the appellant's service-connected diabetes mellitus with peripheral neuropathy, cardiac disease, lumbar spine or right knee conditions. The examiner found that the appellant's taking of nonsteroidal anti-inflammatory drugs (NSAIDS), including Naproxen, for the treatment of his right knee or lower back condition did not aggravate his claimed renal disease. However, the Board finds that the rationale for the opinion was inadequate. The VA examiner stated that the renal failure proceeded the taking of Naproxen because it was noted in 1993 and noted that it was nearly impossible to quantify accurately how much NSAIDS the appellant actually took over the past decade without resorting to speculation. As the examiner stated that it was unclear how much medication the appellant took, it is unclear as to how he was able to provide an opinion that the appellant's taking of NSAIDS did not aggravate his claimed renal disease. The VA examiner also opined that the appellant's service-connected lumbar spine and right knee conditions are orthopedic, and are definitely not causally related to his renal disease at all. However, the VA examiner did not provide a rationale for the opinion. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the VA examiner did not specifically address whether each of the appellant's service-connected disabilities aggravated the renal disease and provided an inadequate rationale for his opinions, the September 2012 opinion is inadequate and the case must be remanded to obtain a new opinion. Accordingly, the case is REMANDED for the following action: 1. The claims file is to be returned to the physician who generated the September 2012 opinion concerning the appellant's renal pathology. If that physician is unavailable, the claims file should be assigned to another appropriate VA physician for review. The physician must review the claims file and address the following: (a) Whether it is at least as likely as not (50 percent probability) that any portion of the appellant's claimed renal pathology is etiologically related to any one or more of his service-connected disabilities (diabetes mellitus, peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, cardiac disease status post four-vessel coronary artery bypass surgery, lumbar spine and right knee). (b) Whether it is at least as likely as not (50 percent probability) that any portion of the appellant's current claimed renal pathology is caused or made worse/aggravated by any one or more of his service-connected disabilities (diabetes mellitus, peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, cardiac disease status post four-vessel coronary artery bypass surgery, lumbar spine and right knee). (c) Whether it is at least as likely as not (50 percent probability) that any medication taken by the appellant, such as Naproxen, for the treatment of any service-connected disability caused or made worse/aggravated the claimed renal disease. In providing answers to the above questions, if the examiner concludes that the appellant's renal disorder was aggravated by a service-connected disability, the examiner should provide a baseline as to the severity of the disorder before being aggravated by the service-connected disability. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the clinician concludes that another examination of the appellant is needed before an opinion can be rendered, the AOJ should schedule the appellant for said examination. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a renal disorder, claimed as secondary to service-connected disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs