Citation Nr: 1312256 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-15 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1981, and from November 1990 to July 1991. This appeal arose from a 1998 claim for benefits, which was eventually addressed in an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction has since been returned to the RO in Atlanta, Georgia. The reason for the delay between the application for benefits and rating decision is not clear from the record. The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ) in July 2011. A transcript of the proceeding has been associated with the Veteran's claims file. The Board remanded the claim in February 2012 for further development and consideration. FINDINGS OF FACT 1. The weight of the competent evidence is against a conclusion that the Veteran's left knee disorder was incurred during any period active service or was manifested to a compensable degree within the first year after discharge from a period of active service; and the Veteran's in-service left knee injury in 1991 resolved without residual disability. 2. The Veteran is not in receipt of service connection for any disability, so secondary service connection for a left ankle disability is not possible. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A left ankle disorder was not incurred in or aggravated by active service, nor is a left ankle disorder proximately due to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The RO provided the appellant pre-adjudication notice by letter dated in March 2006. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the criteria for service connection. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history, symptoms since service, and pointed out pertinent missing service treatment records (STRs) and Social Security Administration (SSA) disability insurance records. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board remanded this claim in February 2102 to obtain STRs from the Veteran's second period of service and SSA disability insurance records. The AMC contacted the appropriate service department and SSA, but was advised that no such records exist. In a June 2012 letter, the AMC notified the Veteran of this finding and requested that he submit any records in his possession regarding in-service medical treatment and SSA disability records . He neither responded to that letter, nor to the January 2013 supplemental statement of the case (SSOC), regarding the nonexistence of these records and resultant absence of any such records from the file. In addition, current ongoing treatment records, and an examination with nexus opinion were requested and were obtained. The Board therefore is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis A. Left Knee Claim Service connection may be granted when the veteran has a disability as the result of a disease or injury incurred or aggravated by service that is not the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110. To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If arthritis is not diagnosed during service, but is present to a compensable degree within one year following separation from service, service connection is warranted. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that he injured his left knee when he fell and his left knee struck some rocks in March 1991, resulting in his current left knee disorder. Records from the Veteran's first period of service do not reflect any knee complaints. In August 1981, however, the Veteran sought VA benefits for a disability he identified as "fluid under knee caps" which he claimed was treated in 1978. He was subsequently scheduled for an examination for VA purposes, but as he failed to report no further action on the claim was taken. In an April 1982 letter, the Veteran was advised his claims were denied because of his failure to report for examination. Service treatment records from his second period of service are unavailable, but the Veteran submitted a sick slip showing he received treatment for a knee injury. Records dated in the years thereafter do not show the presence of any left knee disability until 1998, when VA X-rays were interpreted as revealing the presence of mild degenerative changes, although they show he fractured his left ankle in 1994 and his right fibula in 1993. A 1996 private medical evaluation report mentions the Veteran advising he "had chronic knee pain while in the Army and was told he had arthritis," but it does not make clear when that occurred or that the discomfort continued after discharge from the Army. The evaluation itself did not diagnose any knee disorder, and National Guard service records dated in 1996 show the Veteran denied any knee symptoms in a medical history report prepared in connection with enlistment into the National Guard, and no knee abnormalities were noted on the corresponding examination report. Likewise, a subsequent VA X-ray of the knee taken in March 2001 was interpreted as showing no bony pathologic change and was characterized as an "unremarkable study." In connection with this claim, the Veteran was examined for VA purposes in February 2012, at which time the left knee diagnosis was mild degenerative joint disease. After reviewing the file, considering the Veteran's reported history, and examination of him, the examiner offered the opinion that it was less likely than not the Veteran's left knee disability was incurred in or caused by service. The examiner cited to the absence of any knee complaints after 1991 for several years, and the fact the Veteran denied any knee problems in 1996. The absence of a continuum of knee complaints after 1991, until several years later convinced the examiner that the Veteran's current knee disability was unrelated to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's current left knee condition is related to an in service injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Board finds that the Veteran is not competent to etiologically link his currently diagnosed left knee condition with his service or any injury or incident therein. Such a nexus opinion requires medical knowledge, as possessed by the 2012 VA examiner. Given the 2012 VA examiner's review of the claims file and her examination of the Veteran, the accurate history on which that examiner's opinion was based, and the fully articulated and reasonably explained opinion that she offered, the Board finds that the opinion is very probative and more persuasive evidence than the Veteran's contentions. Since it is adverse to the claim, the Board concludes that the preponderance of the evidence is against the Veteran's claim and service connection for a left knee disability is denied. In reaching this decision, the Board notes that, despite VA's numerous attempts to locate them, the Veteran's STRs from his second period of service are not of record. This is unfortunate, but the VA examiner, as well as the Board, accepted the Veteran's report of an in-service left knee injury in 1991, and considered this injury in determining if the Veteran has a current left knee disorder related to service. As indicated, the preponderance of the evidence is against the claim of entitlement to service connection for a left knee disorder. There is no reasonable doubt to resolve in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Therefore, the benefit sought on appeal is denied. B. Left Ankle Disorder The Veteran concedes that he did not injure his left ankle in service, and he fractured his left ankle subsequent to service in 1994. Therefore, service connection for disability as incurred in service is not warranted. However, at his hearing, he contended that he developed an altered gait due to his left knee disorder which aggravates his left disorder. At his February 2012 VA examination, he also contended that his left knee buckled causing him to fracture his left ankle. Service connection may be granted for disability proximately due to or the result of a service-connected disability. As well, secondary service connection may be granted on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. 38 C.F.R. § 3.310. Here, since the Veteran is not in receipt of service connection for a left knee disorder, service connection for disability as secondary to that disorder is not warranted. Therefore, the benefit sought on appeal is denied. ORDER Service connection for a left knee disorder is denied. Service connection for a left ankle disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Lenny Work Below: The record indicates that in August 1981, soon after his discharge from his first period of service, the Veteran sought VA compensation for, inter alia, "fluid under [the] kneecaps." The record also reflects that the Veteran failed to appear for his subsequent scheduled examination, although in a recent statement the Veteran reports that he did not receive notification of the scheduled examination. His second period of service was from November 1990 to July 1991. The Veteran has submitted a March 1991 individual sick slip form indicating that he received follow-up care for a knee injury of an unspecified knee. The sick slip form reflects that the Veteran was prescribed some physical restrictions and referred to the orthopedic clinic, with the disposition of the Veteran marked to "hospital." In 1994, he fractured his left ankle. In a February 1996 private treatment record, the Veteran reported experiencing ongoing bilateral knee pain since his military service. However, the Veteran failed to report any knee symptoms in a June 1996 reservist medical history report, and no knee abnormalities were noted on his corresponding examination report. November 1998 VA left knee x-rays were interpreted to reveal mild degenerative changes, although March 2001 VA left knee X-rays were interpreted to reveal no major abnormalities. The Veteran's recent VA treatment records reflect his continued reports of experiencing left knee pain. A VA examination was conducted in February 2012, and an addendum was provided in November 2012. The diagnoses were mild left knee degenerative changes, small knee joint effusion, and lucency of the left posterior tuberosity presumably related to prior trauma. The examiner stated that it was less likely as not that the Veteran's current left knee condition was due to service or to the in-service left knee injury. The medical examiner provided a comprehensive report including rationales for all the opinion, citing the objective medical findings leading to the examiner's conclusions. The physician specifically discussed the Veteran's report of the onset of left knee swelling in service in 1981 and the 1991 in-service injury, and besides noting the lack of medical treatment subsequent to the 1991 injury, also noted that the Veteran noted the lack of complaints of a left knee condition in treatment records in 1994 and 1996 in arriving at her findings. Department of Veterans Affairs