Citation Nr: 1312431 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 05-21 504A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for arthritis of the lower extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran had active service from November 1984 to September 1991. This matter initially came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2004 rating decision by the Regional Office (RO) in St. Petersburg, Florida, Regional Office (RO), which denied the Veteran's attempt to reopen his claim of entitlement to service connection for arthritis of the lower extremities. The Veteran perfected a timely appeal to that decision. In a December 2008 decision, the Board reopened and denied the Veteran's claim of entitlement to service connection for arthritis. The Veteran subsequently appealed the case to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claim for readjudication. In a November 2010 order, the Court granted the joint motion, vacated the Board's December 2008 decision, and remanded the case to the Board for readjudication. In July 2011, the Board remanded the Veteran's claim to the RO for additional development. Following the requested development a supplemental statement of the case (SSOC) was issued in August 2012. In a September 2012 decision, the Board determined that new and material evidence had been submitted and thus reopened and remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional evidentiary development and consideration. The AMC completed the requested development and issued another SSOC in February 2013. Review of the record reflects substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's arthritis of the knees and ankles was not first manifested during active duty, and those disabilities are not otherwise shown to be related to a period of active duty. 2. The Veteran does not have arthritis of the hips. CONCLUSION OF LAW Arthritis of the hips, knees, and ankles, was not incurred in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate 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); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in March 2004 from the RO to the Veteran, which was issued prior to the RO decision in May 2004. Additional letters were issued in July 2011 and October 2012. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). They were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran. No useful purpose would be served in remanding the questions addressed herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The service treatment records (STRs) indicate that the Veteran reportedly slipped on ice and twisted his right ankle in December 1984; an x-ray study of the ankle was within normal limits. The Veteran was diagnosed with patellofemoral syndrome in December 1984 after reporting that he had left knee pain. He reportedly twisted his knee in August 1985 and was diagnosed with a sprain. In October 1985, he was assessed with a left hip pointer following a fall. During a clinical visit in December 1985, the Veteran reported injuring his left knee when he slipped on ice; he was diagnosed with a contusion. He suffered a fall in December 1986, after which he was diagnosed with a strain injury to the right knee. A July 1988 service treatment record documents his report of left leg pain. The Veteran reportedly twisted his left knee in June 1989 and was assessed with a traumatizing strain. He reported having arthritis in his bilateral knees in February 1991. The examiner noted that the Veteran had a physical profile for degenerative arthritis of the lower extremities, but he did not identify the specific joints affected by arthritis. A Master Problem List includes a February 1991 notation of degenerative arthritis. Overall, these records are negative for X-ray evidence of arthritis in the ankle, hip, or knee joints. The service treatment records reflect that the Veteran underwent an examination in conjunction with a Medical Evaluation Board (MEB). Although the associated report is undated, it appears that the associated examination was conducted in March 1991. There are no physical findings included on the MEB examination report of any conditions affecting the bilateral lower extremities. On the associated MEB report of medical history, the Veteran reported having present complaints or a history of broken bones, arthritis, rheumatisms, or bursitis, and bone, joint or other deformity. However, the service treatment records are negative for any complaints, findings or diagnosis of any hip disorder. The Veteran was afforded VA compensation and pension examinations in November 1991. During one of these examinations, the Veteran reported having bilateral knee pain since 1986 and that he was diagnosed with arthritis while on active duty. The clinical examination, to include a neurologic examination, was negative for objective evidence of active arthritis. The second examination report documents the Veteran's complaints of bilateral hip, knee, and ankle pain. However, the associated physical assessment was negative for the bilateral hips, knees, and ankles. Received in January 2004 were private treatment reports from Drs. Perry Farb and William Silverman, dated from December 2000 to October 2003. These records document his February 2002 report of a history of degenerative arthritis, joint pains, and arthralgias. The associated clinical examination revealed degenerative joint disease in the knees. In March 2002, the Veteran reported having low back, bilateral knee, bilateral hip, and left ankle pain for approximately one year. The clinical examination revealed an initial impression of polyarthropathy of unknown etiology. During an April 2002 assessment, his private physician noted that there were signs and symptoms suggestive of internal derangement o of the right knee. In June 2002, his physician noted that his flat feet disability could be affecting his hip symptoms. Received in June 2005 were VA progress notes dated from October 2003 to June 2005. During a clinical visit in October 2003, the Veteran indicated that he has had low back, hip and knee pain since he was in the military. The impression was arthritis. The Veteran underwent radiologic examinations in November 2004, which revealed degenerative changes in the knee and arthritic changes in the bilateral ankles. A May 2005 treatment record shows a diagnosis of patellofemoral syndrome of the bilateral knees. On the occasion of a VA examination in October 2006, the Veteran complained of generalized arthritis in his body, but mostly causing pain in the lower back and his ankles; he reported having arthritis in his bilateral lower extremities since the 1990s. The pertinent diagnosis was moderately severe arthritis of the back and ankles. The Veteran was afforded another VA examination in November 2012. At that time, the Veteran indicated that he sustained multiple twisting injuries in his left ankle during his service. The examiner noted that the STRs do not indicate that he sustained any left ankle injuries during service. A right ankle injury treated conservatively was mentioned in the STRs. Today, the Veteran indicated that he had daily left ankle pain, and his right ankle is much better. He denied any left ankle surgery or injections. He ambulated without any assistive devices; he was not taking any medications for a left ankle condition. Following examination of the ankles, the pertinent diagnoses were: degenerative joint disease of the left ankle, and no identifiable right ankle condition. The examiner opined that the left ankle condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner explained that review of the STRs do not indicate that the Veteran suffered from a left ankle condition during the service. He noted that the STRs do mention a right ankle injury; however, he found no evidence of a right ankle injury or condition on examination today. The examiner stated that he was unable to correlate the left ankle degenerative joint disease to service when no mention of a left ankle injury available in the STRs. With respect to the hips, the Veteran stated that he cannot pinpoint where the hips hurt him. The examiner noted that the STRs indicate that the Veteran suffered a left hip contusion; however, no other hip conditions are referenced in the STRs. The Veteran indicated that his vague and non-localized bilateral hip pain occurs daily. He denied his surgery or injections. Following examination of the hips, the diagnosis was "no identifiable hip conditions." The examiner stated that the claimed hip condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that the STRs do not reveal any significant hip trauma or condition that would explain any hip condition today. He further noted that a left hip contusion would have healed by now and is not known to contribute to any chronic or long-going condition. With respect to the knees, the examiner noted that the STRs indicate a diagnosis of left PFS, left knee contusion and right patellar tendon pain after a fall during service. The Veteran reported having daily right knee pain and noted that his left knee pain is "nothing compared to the right knee." It was noted that the Veteran underwent a right knee arthroscopy with microfracture for articular cartilage damage in 2009; he denied any other knee surgery. He was not currently taking medication for a knee condition. Following examination of the knees, the examiner reported a diagnosis of degenerative joint disease of the right knee; no identifiable left knee condition. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner sated that the STRs do indicate a diagnosis of left PFS, left knee contusion and right patellar tendon pain after a fall during service; however, he did not find any evidence of a left knee condition on the examination today. The examiner also stated that degenerative joint disease of the right knee is not likely due to the fall during service that resulted in pain just inferior to his patella. His arthroscopy surgery, which provided direct visualization of his right knee joint revealed DJD along his medial femoral condyle. No described event in the STRs would account for this condition. The examiner stated that he could not explain the right knee DJD based on military service. III. Legal Analysis. Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). In addition, the law provides that, where a Veteran served ninety days or more of active service and arthritis become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A. Arthritis of the hips. As noted above, in order to establish service connection there must be an in-service disorder, a present disorder and a link between the two. In this case, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has a disability of the hip, including arthritis, for which service connection may be granted. STRs. clearly demonstrate that the Veteran was assessed with a left hip pointer following a fall in October 1985. The Veteran contends that he has since experienced bilateral hip pain. The evidence of record demonstrates the Veteran's repeated treatment for pain in the joints, including the hips. As noted above, the Veteran is competent to testify as to the continuity of ongoing symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Significantly, however, the preponderance of the most probative evidence is against finding a clinical disability for which service connection may be granted. Following a VA examination in November 2012, the VA examiner found no identifiable hip conditions. It bears noting that pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, the VA examination opined that the claimed hip condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that the STRs do not reveal any significant hip trauma or condition that would explain any hip condition today. He further noted that a left hip contusion would have healed by now and is not known to contribute to any chronic or long-going condition. Further, clinical demonstration of a current chronic disability is prerequisite for service connection and there can be no valid claim for service connection in the absence of proof of a present disability. The Veteran is not competent to diagnose the reason why he suffers from hip pain. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board concludes that, without competent and probative clinical evidence of a diagnosis of arthritis of the hips, service connection must be denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (current disability is a prerequisite to an award of service connection). The Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. See 38 U.S.C.A. §§ 1110, 1131. Without a diagnosed or identifiable underlying disability, the analysis ends, and service connection for arthritis of the hips may not be awarded. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The claim is therefore denied. B. Arthritis of the knees and ankles. After review of the evidentiary record, the Board finds that service connection is not warranted for arthritis of the knees and ankles. Significantly, the STRs show that the Veteran received treatment for complaints of pain involving his right knee, left knee and right ankle; however, the records do not reflect any clinical findings of arthritis in those joints. The STRs are negative for X-ray evidence of arthritis in the ankles or knee joints. It is noteworthy that, on the occasion of his initial post service VA examination in November 1991, the impression was negative examination of the knees and ankles. The first clinical finding of arthritis of the knees and ankles was in November 2004, some 13 years after service separation. (The Court has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).) In addition, while the Veteran has current diagnoses of degenerative disc disease of the left ankle and right knee, there is no competent evidence indicating that there is a relationship between the Veteran's current disabilities and active military service. The Veteran has not submitted any competent evidence of a nexus to service. Rather, following the VA examination in November 2012, the VA examiner reviewed the medical records, examined the Veteran, and offered his opinion that, based on the above information, it was less likely than not that the Veteran's degenerative disc disease of the left ankle and right knee was caused by the claimed inservice injury, event or illness. The VA examiner is a medical professional and competent to render an opinion as to medical causation. His opinion is reasonably based on review of the claims folder and a physical examination of the Veteran. No evidence has been received which contradicts it. With respect to the right ankle and left knee, while the November 2012 VA examiner found no identifiable condition involving these joints, a review of extensive VA and private treatment records reflects treatment for these joints during the appeal period. In fact, radiology reports dated in November 2004 reported findings of degenerative changes in the knees. An October 2006 VA examination report noted a finding of mildly severe arthritis in the ankles. Nonetheless, none of the Veteran's treatment providers attributed his disabilities to service. Moreover, while the November 2012 VA examiner found no identifiable condition of the right ankle and left knee, he also stated that it was less likely than not that the Veteran's claimed disabilities involving those joints were caused by the claimed inservice injury, event or illness. The VA examiner is a medical professional and competent to render an opinion as to medical causation. His opinion is reasonably based on review of the claims folder and a physical examination of the Veteran. No evidence has been received which contradicts it. In this case, while the Veteran is competent to report symptoms, he is not competent to provide evidence as to more complex medical questions, such as the existence and/or etiology of arthritis. See Barr, 21 Vet. App. 303; see also Robinson v. Shinseki, 557 F.3d 1355 (2009) (holding that while a layperson might be competent to identify a "simple" condition like a broken leg, he would not be competent to identify a form of cancer). Arthritis, like cancer, is not a simple condition capable of lay observation. Arthritis cannot be seen or diagnosed without medical expertise. Further, the November 2012 VA examiner considered the Veteran's report of in-service injuries and post-service symptoms in reaching his medical conclusions. Consequently, in this case, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant a claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, for the reasons set forth above, the Board finds that the preponderance of the evidence weighs against a finding of service connection for arthritis of the hips, knees, and ankles. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefits sought on appeal are accordingly denied. ORDER Service connection for arthritis of the lower extremities is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs