Citation Nr: 1311963 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-49 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disorder, claimed as to a service-connected right ankle disability. 2. Entitlement to service connection for hypogonadism. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from December 1990 to May 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2009, the Veteran testified during a hearing before RO personnel: a transcript of that hearing is associated with the claims file. In September 2012, the Board remanded these matters for additional development. After completing the requested actions, the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. A right knee disorder, to include arthritis, was not shown in active service, was not manifest to a compensable degree within one year of separation from service or for many years thereafter, and the weight of the probative medical opinion evidence has found that the Veteran's right knee disorder is not caused or aggravated by his service-connected right ankle disability. 2. Hypogonadism did not manifest in service and the only medical opinion to address the etiology weighs against the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder, claimed as secondary to a service-connected right ankle disability, are not met. Arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for hypogonadism are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in January 2007 and in May 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. 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, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal. The Board notes the VA opinions of record do not address whether service connection for a right knee disorder, on a direct basis, is warranted. However, for reasons explained in greater detail below, the Board does not find the Veteran's account of having experienced an injury to his right knee and having right knee pain since service to be credible. Therefore, a remand to provide the Veteran with an additional medical examination is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). In sum, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). In addition, service connection may be presumed for certain chronic diseases, including arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. 3.307, 3.309(a) (2012). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. See 38 C.F.R. § 3.303(b) (2012). 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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). 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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). 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 addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). A. Right knee Service treatment records (STRs), while replete with complaints and findings pertaining to the right ankle from March to May 1991, are negative for complaints, findings, symptoms, or diagnosis pertaining to the right knee. The initial complaint on March 14, 1991 reflects that when coming out of a tent, the Veteran stated he misstepped, turning his foot inward and was complaining of a possible sprained right ankle. There was no complaints by the Veteran that he fell onto his knee or in any way had complaints or symptoms pertaining to his knee. An August 1991 retention examination for the Naval Reserve was negative for findings, complaints, symptoms, or diagnosis of a right knee disorder. A March 1993 Reserve examination and self-report of medical history is negative for findings, complaints, symptoms, or diagnosis of a right knee disorder. In an April 1993 letter, a private civilian physician, L. S. Young. M.D., stated that the Veteran had a history of injury to his right foot while serving in the Gulf War, and has continued to have soreness and pain in the same area since then. A June 1993 medical officer note provides significant detail regarding the right ankle, but is negative for findings, complaints, symptoms or diagnosis of a right knee disorder. An August 1992 VA examination reflects that the Veteran stated he injured his ankle when he was unloading a truck, when a palate fell off of a truck and resulted in a twisting injury to the ankle. There were no complaints, symptoms, findings or diagnosis as to his right knee. VA medical records from December 1997 to January 1999 are negative for complaints, findings, treatment, or diagnosis of a right knee disability. A February 1999 VA examination report is negative for complaints, symptoms, findings, or diagnosis as to the right knee. A September 2005 private medical record notes that the Veteran had right knee pain for two to three weeks. He was diagnosed with and underwent surgery for a torn medial meniscus, right knee. In an August 2006 letter, a private physician, C. V. Skoog, M.D., stated that the Veteran had pain from a previous right ankle fracture and now had right knee pain. Dr. Skoog further stated that abnormal wear on the Veteran's right knee due to his old right ankle fracture resulted in a tear of the medial meniscus, joint effusion and patellar edema as well as a popliteal cyst. In September 2006, the Veteran submitted a claim for service connection for a right knee condition that he asserted was a direct result of his gait modification caused by his service-connected right ankle condition. In a June 2007 letter, F. Noerager, M.D., a physician from the Birmingham VA medical center, stated that the Veteran had a prior right ankle fracture which has lead to right knee pain. During the August 2009 RO hearing, the Veteran testified that his right knee problem is associated with his service-connected right ankle disability. In addition, he reported that one doctors stated that a Dr. Noerager stated that it was highly possible that the knee problems that he had came from limping around. See page 7 hearing transcript. The Veteran underwent a VA examination in September 2009. His medical records were reviewed and he was examined. It was noted that the Veteran contended that his right knee was due to his service-connected right ankle disorder. The diagnosis was degenerative arthrosis of the right knee. The examiner opined that the right knee disorder was less likely as not caused by the right ankle disorder. He explained that the knee disorder is bilateral and symmetric, indicating a more generalized process that is compatible with usual degenerative processes in an individual. There is no evidence of asymmetrical severity related to the right knee. It is therefore less likely than not that the bilateral degenerative arthrosis of the knees is related to the service-connected right ankle disorder. In his December 2009 substantive appeal, the Veteran asserted that he injured his right knee at the same time he injured his right ankle as he was running to the Bunker while under a Scud attack. He also stated that his right ankle had a broken bone and as he fell he landed on his right knee into a pile of 12 x12 timbers that were used to make bunkers. In September 2012, the prior VA examiner provided an addendum opinion in which he further opined that the Veteran's current right knee condition was less likely than not (less than 50 percent) aggravated by his service-connected condition. His rationale was that the Veteran's service-connected right ankle condition preceded his right knee condition. The pattern of severity of the ankle has progressed over the years with respect to symptoms, but not with respect to the objective findings on imaging studies. The right knee condition progression has far exceeded that to the right ankle and its pattern does not correlate with that of the ankle. The arthritis in the knees is present in both sides. The cause of the knee condition is most likely due to, or aggravated by, the Veteran's age and also his post service occupations that were of a much longer duration than service. The pattern of the right knee symptoms correlates with the post service occupations that were physical in nature. The VA examiner cited to medical literature in support of his conclusions. After carefully considering the pertinent evidence, to include the Veteran's assertions, the Board finds that the preponderance of the evidence is against the claim for service connection for a right knee disorder. The Veteran is competent to observe right knee pain and relate his medical history. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno, 6 Vet. App. at 470. However, the Board must weigh his reports against the additional evidence of record and overall plausibility. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see 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."). With regard to the Veteran's contentions in his December 2009 substantive appeal that he injured his right knee at the same time he injured his right ankle as he was running to the Bunker while under a Scud attack, the Board finds that a grant of service connection on a direct basis is not warranted. Despite the Veteran's contentions, his service treatment records from active service are negative for any complaints, findings, symptoms, or diagnosis of any right knee disability at any time, to include when he sustained an injury to his right ankle during active service. With regard to continuity of symptomatology, the Board notes that March 1993 Naval Reserve examination report was negative for complaints, findings, or diagnosis of a right knee disability. Furthermore, a detailed medical officer's report from June 1993 discussed the Veteran's right ankle, but there was no mention as to complaints, findings, or diagnosis of a right knee disorder. As the Veteran was not found to have arthritis within one year after separation from active service, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309 (2012). In fact, a September 2005 private medical record provides the first notation of the Veteran's complaints of right knee pain, more than 10 years after discharge from active service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board acknowledges that the Veteran is competent to describe his subjective symptoms. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds, however, that the Veteran's late report in his December 2009 substantive appeal is inconsistent with the clinical evidence as to lack credibility. In this regard, in none of the medical records associated with the claims file, prior to or after the Veteran's submission of December 2009 substantive appeal, did the Veteran ever mention that his right knee was in anyway directly related to any incident in service. He never indicated that he had ongoing right knee symptoms since service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Indeed, the September 2005 private medical record notes that the Veteran complained of right knee pain for two to three weeks. Moreover, the Veteran's injury to his right ankle was reported by him in a March 1991 service treatment record as a result of having misstepped, turning his foot inward, while coming out of a tent, not from having sustained an injury while running to a bunker during a Scud missile attack, contrary to his more recent contentions in his December 2009 substantive appeal. Lastly, such contentions are also inconsistent with the Veteran's testimony provided during the August 2009 RO hearing. These inconsistencies in the record weigh against the Veteran's credibility as to any claimed injury to his knee in service or assertions for continuity of symptomatology. See Madden, 125 F.3d at 1481; Caluza, 7 Vet. App. at 512. Moreover, there is no competent medical evidence or opinion that any diagnosed right knee disability is related to the Veteran's active service, on a direct basis, and neither the Veteran nor his representative has presented, identified, or alluded to the existence of any such opinion. The only medical evidence submitted by the Veteran in support of his claim is to further his contentions that he has a right knee disability related to his service-connected right ankle disability. In this regard, the favorable medical evidence that the Board has considered includes an August 2006 letter from Dr. Skoog's in which he stated that abnormal wear on the Veteran's right knee due to his old right ankle fracture resulted in a tear of the medial meniscus, joint effusion and patellar edema as well as a popliteal cyst and the June 2007 letter from Dr. Noerager at the Birmingham VA medical center in which she stated that the Veteran had a prior right ankle fracture which has lead to right knee pain. However, each of the physicians provided findings that were one sentence long, summary in nature, and did not cite to clinical findings in service, or thereafter, and neither physician provided any sort of explanation or rationale, nor do they cite to any studies or medical authority. Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, these medical findings are afforded no probative value. In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on such factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 336 (1994). By contrast, the Board accords great probative value to the September 2009 VA examiner's opinion in conjunction with his September 2012 addendum opinion and rationale, based as it was on a thorough review of the Veteran's claims file, to include a review of the Veteran's medical records, the Veteran's assertions, and medical opinions of record. Importantly, the VA examiner provided a rationale for his opinions specific to the facts of the Veteran's case and discussed pertinent medical literature in support of his medical opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). See Guerrieri v. Brown, 4 Vet. App. 467, 470- 471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Thus, considering the medical opinions of record, for the reasons discussed above, the Board finds that the most probative medical opinion evidence on the medical nexus question weighs against the claim for service connection for a right knee disorder, claimed as secondary to a service-connected right ankle disability. The only other evidence of record supporting the Veteran's claim for service connection for a right knee disorder is his own lay statements. To the extent the Veteran asserts that his current right knee disorder is related to service, the onset and etiology of arthritis is a complex medical matter beyond the knowledge of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). Whether it is related to a service-connected disability requires specialized training for a determination as to its causation, and is therefore not susceptible of lay opinion. In this regard, a medical professional has greater skill. For all of the above reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for a right knee disorder, claimed as secondary to a service-connected right ankle disability, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Hypogonadism The Veteran is seeking service connection for hypogonadism due to exposure to chemical and environmental hazards to which he was exposed while serving in Saudi Arabia. The Board notes that hypogonadism is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303 (b) does not apply. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service treatment records are negative for complaints, findings, symptoms, or diagnosis of hypogonadism. VA medical records show that the Veteran is diagnosed with hypogonadism and receives testosterone injections for treatment. The onset is noted in May 2005. A September 2012 VA examination report also reflects that the Veteran is diagnosed with hypogonadism and erectile dysfunction. The medical history of the condition as indicated by the Veteran is that he started to have issues with generalized fatigue and weakness. He also was having libido issues. He was determined to have hypogonadism and was placed on testosterone injections every 2 weeks to help with the symptoms. Also, as part of this, he has had erectile dysfunction issues. The VA examiner opined that the Veteran has erectile dysfunction that is at least as likely as not (at least a 50 percent probability) attributable to hypogonadism. He further opined that the Veteran's current hypogonadism (with associated erectile dysfunction) is less likely as not (less than 50 percent) related to, or caused by, his time in service (include exposure while in Saudi). His rationale was that there are no established studies indicating a cause and effect relationship between these exposures and hypogonadism. His condition started at least 10 years after service. The VA examiner further opined that the Veteran's hypogonadism and associated erectile dysfunction are more likely due to aging and the Veteran's past history of alcohol abuse. These are well established causes of this condition. The VA examiner cited to medical literature in support of his conclusions. The Board finds that the September 2012 VA examiner's opinion constitutes probative evidence on the medical nexus question- based as it was on a thorough review of the Veteran's claims file and examination of the Veteran, with discussion of the Veteran's pertinent medical history. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board finds that the September 2012 VA examiner provided a basis for his opinion, in his discussion of the pertinent medical evidence and evaluated pertinent medical literature. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for hypogonadism on appeal. The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board has considered the Veteran's contentions that he has hypogonadism related to service, specifically due to exposure to chemical and environmental hazards while serving in Saudi Arabia. The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno, supra. However, the Board finds that the etiology of hypogonadism is the type of medical disorder that is difficult to establish solely on the basis of lay assertions. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Further, the Board finds the VA examiner's opinion to be more persuasive due to the examiners medical education, training, and experience. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a hypogonadism, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right knee disorder, claimed as secondary to service-connected right ankle disability, is denied. Entitlement to service connection for hypogonadism is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs