Citation Nr: 1312258 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 12-04 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a right knee disorder as secondary to service-connected left total knee arthroplasty. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to May 1953. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Sioux Falls, South Dakota, Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's petition to reopen the claim of service connection for a right knee disorder. In November 2012, the Board reopened this case and remanded the case on its merits for further development. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in September 2012. A transcript of the hearing is associated with the claims file. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This file includes additional VA treatment records that have been considered in conjunction with this appeal. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Right knee disability did not have its clinical onset in service and is not otherwise related to active duty; it was not due to or aggravated by service-connected disability. CONCLUSION OF LAW Right knee disability was not incurred in or aggravated by service and is not due to a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in May 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. In addition, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a September 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's November 2012 remand, VA sent the Veteran a November 2012 letter requesting that he complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for any private treatment providers, including his chiropractor, orthopedic surgeon, and Clarkson Memorial Hospital. In response, the Veteran submitted treatment records, but no additional Authorization and Consent forms. VA was thus unable to obtain records of the Veteran's private treatment. VA then provided the Veteran with a medical examination in January 2013. This examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed right knee disability, including its relationship with the Veteran's service connected left knee disability. This opinion was accompanied by a complete rationale. Therefore, this examination is adequate for VA purposes. The Board thus finds that VA has complied with the November 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, at the hearing, the undersigned identified the issue and sought information as to onset and causation. Ultimately the claim was remanded for an examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, the Board finds that no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran has not alleged that his right knee disorder is directly related to service. Nevertheless, the Board has considered whether service connection may be established on a direct basis. 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record does not show an in-service onset of right knee symptoms or an in-service injury to the right knee. Moreover, the Veteran's did not complain of right knee pain until several decades after his separation from service, and no continuity of symptomatology has been alleged. As such, an in-service occurrence or aggravation of a disease or injury has not been established and, thus, the requirements for direct service connection are not met. Instead, the Veteran has argued that his current right knee disorder is the result of his service-connected left knee disability. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a current diagnosis of degenerative joint disease of the right knee. This diagnosis was confirmed at the April 2009 VA examination. He underwent a right total knee arthroplasty in April 2012. Additionally, he is currently service-connected for left total knee arthroplasty. Thus, the first two requirements under Wallin have been satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between his service-connected left total knee arthroplasty and the current degenerative joint disease of the right knee. Because the question of whether a disability such as degenerative joint disease is related to another disorder is a medical question requiring expertise, the Board relies upon the April 2009 and January 2013 VA examiners' opinions. The examination reports reflect that the examiners comprehensively examined the Veteran's claims file and understood the medical questions asked by the originating agency. Both the April 2009 and January 2013 VA examiners found that the Veteran's right knee condition was not secondary to or aggravated by his left knee disability and was more likely due to the Veteran's age. Although the April 2009 opinion was not accompanied by a detailed rationale, the January 2013 opinion did thoroughly address each of the Veteran's contentions and nevertheless found no basis upon which to establish a nexus. In that connection, the January 2013 VA examiner offered a clear and complete rationale for her opinion that the Veteran's current degenerative joint disease of the right knee was not likely related to his service-connected left knee disorder, relying on the medical records and her medical expertise, as well as the current state of medical knowledge in the field. Specifically, the January 2013 examiner noted that the evidence of record did not suggest that the Veteran's left knee had given him ongoing trouble or caused an altered gait following his arthroplasty and, in fact, established that the Veteran's right knee problems began more than ten years after his left knee surgery, thus rendering it unlikely that any current right knee problems were related to the Veteran's left knee disorder. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran's service-connected left knee disorder and his degenerative joint disease of the right knee. In so finding, the Board notes that the Veteran has referenced two statements that he believes show an etiological association. First, in a February 2009 VA treatment record, the Veteran's VA orthopedic surgeon noted that it was "certainly a very viable possibility that the pain in the right knee and the increased use of the right knee increased the arthritic changes and the pain on the right side." Similarly, in a June 2012 letter, the Veteran's private orthopedist stated that the Veteran asked if a subtle leg length discrepancy following his left knee replacement could have precipitated the wear on his right knee. The orthopedist stated only that this may have been a factor in conjunction with years of use in that "it might have 'worn out' sooner [than] if he'd never had a problem with his left knee." Because these statements are no more than speculative as to the possibility of an etiological relationship, the Board finds that the February 2009 and June 2012 statements regarding a possible association between the Veteran's right knee problems and his service-connected left knee disorder are of less evidentiary weight. In so finding, the Board notes that service connection may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). In this case, the Veteran's February 2009 VA examiner found only that it was "possible" that his left knee disorder had caused his right knee problems. Similarly, the private orthopedist stated in June 2012 only that the Veteran's left knee disorder "might have" brought about or worsened his right knee disability. Therefore, these medical opinions do not have the required degree of medical certainty required for service connection. The strongest evidence in favor of the Veteran's claim are the speculative statements from the VA treatment provider in February 2009 and private orthopedist in June 2012 that the Veteran's current right knee problems "might have" or "possibl[y]" developed secondary to his service-connected left knee disorder. This evidence is outweighed by the conclusions offered by the April 2009 and January 2013 examiners, who related the Veteran's degenerative joint disease of the right knee not to his service-connected left knee disorder but to other causative factors-in particular, the "normal wear and tear" of the aging process. Regarding the Veteran's theory of causation due to leg length discrepancy, the January 2013 VA examiner noted that such discrepancy was not consistently shown by the medical records. To the extent that it was, however, the VA examiner pointed out that a private treatment record dated February 2012 found the Veteran's left leg to be only 0.6 cm longer than the right. The examiner found that such a slight leg length discrepancy was not sufficiently severe to alter the Veteran's gait, referring to medical literature that found it "probable that shortening of less than 5 cm. does not cause an appreciable limp." Furthermore, in her detailed rationale, the January 2013 examiner found no evidence of a leg length discrepancy due to left knee replacement, instead finding that the "minor shortening of the right leg noted on ... 2012 x-rays was likely due to the loss of joint space at the knee due to DJD." Finally, the January 2013 examiner noted that the ten-year delay between the Veteran's left knee replacement and his right knee symptoms "is consistent with age-related general wear and tear and not consistent with being caused by left knee problems." In support of that finding, the examiner noted that the Veteran had had a career of more than 30 years with the post office without complaining of any right knee problems. In summation, the January 2013 examiner found that the record did not support the Veteran's assertions that his right leg had borne more weight or otherwise that he had developed a right knee disorder as a result of his service-connected left knee disability. Likewise, the Veteran has stated that he believes his degenerative disc disease of the right knee is due to his service-connected left total knee arthroplasty, specifically contending that he developed an altered gait and leg length discrepancy due to his left knee disorder. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation involves interrelated musculoskeletal processes and thus extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. In conclusion, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against service connection for right knee disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a right knee disorder is denied. ____________________________________________ CAROLINE B. FLEMING Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs