Citation Nr: 1312975 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-36 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for degenerative joint disease of the bilateral knees, status post bilateral total knee replacement, to include as secondary to chronic low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to July 1982. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Board reopened this case and remanded it for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. These documents have been reviewed in conjunction with this claim. FINDING OF FACT The competent and credible evidence does not show that the Veteran's bilateral knee disability is related to his military service or to his service-connected chronic low back pain. CONCLUSION OF LAW A bilateral knee disability was not incurred in or aggravated by service, is not due to a service-connected disability, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 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, 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 June 2007 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. Next, 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. 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. 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 December 2011 remand, VA sent the Veteran a January 2012 letter requesting that he complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for all records of the Veteran's treatment for arthritis of the knees, including all records pertinent to an October 2004 right total knee replacement. In response, VA received records of the Veteran's right knee replacement surgery from St. John's Hospital. VA then provided the Veteran with a medical evaluation in March 2012. This examiner reviewed the objective evidence of record and documented the Veteran's current complaints, then offered an opinion as to whether degenerative joint disease of the bilateral knees was ruled out in October 1985, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the December 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, 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 Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. As a chronic disease, arthritis, such as osteoarthritis or degenerative joint disease, would be entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation from service or was shown in service and at any time thereafter. 38 U.S.C.A. §§ 1112(a), 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. A compensable degree of degenerative joint disease, would require X-ray evidence or the disability. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, arthritis was not diagnosed during service or within one year of his separation. There is no x-ray evidence of arthritis of the knees within one year of his separation from service. Instead, the record first shows a diagnosis of bilateral knee arthritis three years after separation. A November 1983 record, more than a year after the Veteran's separation, does note his complaints that his arthritis was getting worse. Earlier records from June 1982 that show a diagnosis of arthritis (degenerative joint disease) of the spine and left hip, suggesting that these were the arthritic joints to which the Veteran was referring. Moreover, this is beyond the one-year presumptive period. Therefore, presumptive service connection is not warranted for the Veteran's bilateral knee arthritis. Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, the claim still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). Direct service connection requires competent and credible evidence of a current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the record shows a diagnosis of bilateral knee degenerative joint disease and he has undergone total knee replacement on both knees. Thus, the current disability requirement has been met. The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury. The Veteran's service treatment records do show one complaint of left knee soreness in May 1960 with slight swelling and no discoloration, but do not show complaints of or treatment for a right knee disease or injury during his military service. His January 1982 separation examination shows normal lower extremities, as do his additional periodic examinations. Moreover, the Veteran did not report knee trouble and, indeed, specifically denied arthritis and "trick" or locked knee in his August 1960, July 1963, September 1980, and April 1982 Reports of Medical History. With regard to the alternate requirement of an in-service injury, a September 2003 letter from an Army physician suggested that the Veteran's knee disabilities may have been due to running in boots during service. The Board conceded that the Veteran ran in boots during his military career. Thus, the in-service occurrence or injury requirement is met with regard to the left knee complaints in May 1960 and the reported injury due to running in boots. The third requirement for direct service connection is a nexus between the in-service disease or injury and the Veteran's current disability. In an October 1999 letter, a VA physician stated, "It is my understanding that [the Veteran] has service connected disability of . . . degenerative arthritis of his . . . knees." This statement indicates that this physician was misinformed as to the nature of disabilities for which the Veteran received disability benefits. The Board finds that this statement is not akin to a medical finding of a causal link between the Veteran's service and his current knee conditions. In a note to the November 2007 VA examination opinion, the examiner stated that "the Veteran was diagnosed with DJD of his knees 10/85 barely 3 years after discharge. Given this it is more likely that the degeneration of his knees did begin in service." Unfortunately, this opinion relies on an inaccurate medical history as the October 1985 record shows a provisional diagnosis of degenerative joint disease, but no x-ray evidence of this condition. Ultimately, this condition was instead diagnosed as bilateral patella femoral joint pain syndrome. The March 2012 examiner opined that degenerative joint disease of the bilateral knees was not ruled out by this diagnosis, that the Veteran's reported symptoms were the same as those reported in 1993 when degenerative joint disease was first shown by x-ray, and that degenerative joint disease was often found via MRI years before it was shown by x-ray evidence. He did not, however, state whether these symptoms, without appreciable x-ray evidence of degenerative joint disease, within three years of the Veteran's separation would indicate an in-service onset. VA sought and obtained a clarifying opinion in August 2012 that found it less likely than not that the Veteran's degenerative joint disease of the bilateral knees was incurred in or caused by military service. In the provided rationale, this examiner noted that the Veteran had only one documented complaint of left knee pain during service, not a history of trauma or ongoing knee pain; an increased risk of multiple joint arthritis based on an individual's susceptibility; and that the risk of osteoarthritis increases with age. Although the November 2007 found that an October 1985 diagnosis of degenerative joint disease would indicate an in-service onset of the disease, the record does not support a finding that knee symptoms without supporting x-ray evidence and a clear diagnosis would likewise suggest a onset of three years prior. By contrast, the August 2012 opinion cites a more accurate history of the Veteran's symptoms and diagnoses and therefore is more probative. To the extent that the Veteran himself believes that his bilateral knee degenerative joint disease was due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Thus, the Board finds that the medical nexus requirement has not been met. Alternately, service connection for these disabilities may be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). In this regard, the Board notes that the first evidence of bilateral knee complaints of record is in 1985, three years after the Veteran's service. Prior to that, with the exception of a May 1960 complaint of left knee swelling, there is no objective record of knee symptoms. In his May 2000 VA Form 9 and various subsequent lay statements, the Veteran has reported that his bilateral knee disability began in service. He is competent to report on history of knee symptoms; however, his statements must be weighed in light of the entire record. Layno v. Brown, 6 Vet. App. 465 (1994); 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."). At the time of the November 2007 VA examination, the Veteran reported an in-service onset of his bilateral knee disabilities in the 1970s. Despite this, the record shows that the Veteran specifically denied knee problems in his period Reports of Medical History during service-thereby placing his current lay statements at odds with his in-service lay statements. The Board acknowledges the September 2003 Army physician's statement that the Veteran did not seek additional treatment for his knees and lived with intermittent pains for "quite some time before seeking further evaluation" because he did not want to affect his military career. Although this may have been true early on in the Veteran's career, this theory is significantly weakened by the Veteran's failure to report any knee complaint at the time of his separation and his express denial of arthritis and "trick" or locked knee in his April 1982 Reports of Medical History. Given that the Veteran was ending his military career at that time and that he reported additional musculoskeletal complaints, such as the now-service-connected chronic low back pain, the contention that the Veteran kept silent to preserve his military career is not persuasive. Although the Veteran is competent to report his knee symptoms, the weight of the record is against his credibility. Thus, the weight of the evidence is against a finding of continuity of symptomatology. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran has claimed service connection for his hypertension as secondary to diabetes mellitus. 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). As noted above, the Veteran has a current diagnosis of degenerative joint disease of the knees. Additionally, his chronic low back pain is currently service connected. 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 the service-connected low back pain and the current bilateral knee arthritis. In this regard, the November 2007 and August 2012 VA examiners found that the Veteran's bilateral knee degenerative joint disease was not caused by or aggravated by his service connected chronic low back pain. The November 2007 examiner noted that, although chronic back pain may cause an individual to alter his gait, the guarding efforts taken to avoid back pain generally result in less trauma to the lower extremities. The August 2012 examiner noted that the medical literature did not support a finding that degenerative joint disease of the spine caused or aggravated degenerative joint disease of the joints of the extremities. The Board acknowledges the Veteran's contention that his bilateral knee disability was caused by or aggravated by his service-connected chronic back pain. Again, the question of causation extends beyond an immediately observable cause-and-effect relationship and, thus, the Veteran is not competent to address etiology. Jandreau, 492 F.3d at 1377. The record does not contain a positive medical nexus opinion on the question of secondary service connection. Therefore, service connection is not warranted on a secondary basis. In short, for reasons expressed immediately above, the claim of service connection for bilateral knee disability must be denied. 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 degenerative joint disease of the bilateral knees, status post bilateral total knee replacement, to include as secondary to chronic low back pain, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs