Citation Nr: 1313602 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-37 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for the residuals of a right total knee arthroplasty (TKA). 2. Entitlement to service connection for the residuals of a right leg injury. 3. Entitlement to service connection for the residuals of a left TKA, to include as secondary to a right TKA. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active military duty from September 1950 to August 1954. These issues come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 RO rating decision by the Muskogee, Oklahoma Regional Office (RO). In October 2012, the Board remanded the case for further development so that a VA examination could be scheduled. There has been substantial compliance with the October 2012 Remand Order. See Stegall v. West, 11 Vet. App. 268 (1998). Please note 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). FINDINGS OF FACT 1. A right knee disability did not have its clinical onset in service and is not otherwise related to active duty; right knee arthritis was not exhibited within the first post service year. 2. The Veteran does not have a right leg disability that had its clinical onset in service or is otherwise related to active duty. 3. A left knee disability did not have its clinical onset in service and is not otherwise related to active duty; left knee arthritis was not exhibited within the first post service year and left knee disability is not etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. Right knee disability was not incurred or aggravated in service, and right knee arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. A right leg disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. Left knee disability was not incurred or aggravated in service, is not proximately due to or the result of a service-connected disability, and left knee arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Under the Veterans Claims Assistance Act (VCAA) of 2000, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. Here, pre-adjudication June 2009 and July 2009 letters complied with VA's duty to notify the Veteran with regards to the service connection issues addressed herein. Specifically, these letters apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letters also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Board finds that all VA and private treatment records have been associated with the file. All service records are not in the file at this time. In June 2009, the Veteran was advised that his service treatment and personnel records were potentially unavailable and he was asked to submit them if they were in his possession. He was advised that it was his responsibility to make sure that VA received all requested records that were not in the possession of a Federal department or agency. In July 2009, the Veteran responded that he was sending all records in his possession. The same month, the Veteran was sent a follow up letter that listed all records that were in VA's possession. The Veteran originally stated he was treated at a hospital at Fort Dix; he later admitted it was a dispensary and not a hospital. It was reiterated in the July 2010 statement of the case that only partial records were available. In June 2012, the Veteran again stated he had no further records to support his claim. The Board finds that further efforts to obtain the service treatment records at this time would be futile. Id. When a claimant's treatment records are lost or destroyed, the VA has a heightened duty to assist in the development of the claims. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Board finds that such assistance was undertaken in this case. The Veteran underwent a VA examination in November 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the November 2012 opinion is adequate. The examiner considered the pertinent evidence of record, to include statements regarding the in-service motor vehicle accident that allegedly led to the development of the Veteran's disabilities, fully examined the Veteran, thoroughly reviewed of the claims file, and answered the questions posed by the AOJ. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. See 38 C.F.R. § 3.159(c)(4). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran believes that his currently diagnosed right leg and knee disabilities resulted from a 1952 motor vehicle accident. He has stated that he has continued to have problems with his right knee. See July 2012 VA Form 9. Alternatively, he maintains that his left knee disability is related to his right knee disability. Service treatment records (STRs) establish that the Veteran was involved in a 1952 motor vehicle accident. He was treated for a concussion and there was no mention of injury to the lower extremities. An August 1954 separation examination contains a normal clinical evaluation of the lower extremities. Post-service private treatment records show that the Veteran was diagnosed with degenerative joint disease of both knees in 2000. He underwent a right TKR in September 2000. In April 2005, he complained of increasing left knee pain. The clinician noted that the left knee was approaching the need for replacement. The Veteran underwent a left TKR in October 2005. The right TKR was redone in February 2008. The Veteran underwent a VA examination in November 2012. He reiterated the opinion that his right leg and knee disabilities were related to an in-service motor vehicle accident. After discharge, he worked first as a traveling salesman and then as a purchasing agent for public schools, a position that he held for 30 years until his retirement in 1993. The Veteran reported good results from the knee surgeries. The examiner reviewed the claims file and opined that the claimed conditions were "less likely than not (less than 50 percent probability)" incurred in or caused by the in-service accident. He noted that medical records from the accident document a concussion, but there is no mention of knee problems. He also noted that the separation examination was normal. The examiner stated that he "specifically inquired" as to the onset date of right knee pain and that the Veteran stated that it began "about 10 years before" the first right TKA. The examiner noted that this was "about 1990," or 36 years after discharge. The examiner concluded that it "would be less likely than not that any injury incurred in the service would not manifest itself until years later but more likely than not that bilateral osteoarthritis would follow this exact pattern." He explained that osteoarthritis is an expected condition in the Veteran's age group, and that it was caused by general wear and tear of the knee joints over a long lifetime. He further concluded that the left knee condition was the result of the same process that affected the right knee and was not secondary to the Veteran's right knee. Initially, it should be noted that there is no arthritis within one year of discharge from service. Thus, the presumptive regulations under 38 C.F.R. §§ 3.307, 3.309 are not for application. In the absence of proof of a current disability related to the right leg (other than the knee), there can be no valid claim. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In other words, in the absence of proof of present disability there can be no valid claim. As there is no competent medical evidence of a right leg disability, the claim must be denied. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). With regard to the diagnosed knee disabilities, the record establishes that the Veteran was in a motor vehicle accident during service. There is no indication that he sustained an injury to his knees at that time. Although he was treated for a concussion, STRs are negative for any findings of any knee disability. The separation examination was normal. Indeed, the Veteran told the VA examiner that his knee problems began approximately ten years prior to the right TKA. There are no complaints of, or treatment for, a disability manifested by knee pain until decades after service. Furthermore, there is no opinion which provides a medical nexus between the Veteran's currently diagnosed knee conditions and service. In fact, the VA examiner found that the Veteran's knee conditions are not related to service. Instead, he related these problems to wear and tear as a result of the aging process. This opinion is probative because the examiner discussed the evidence, examined the Veteran, and provided a rationale for his opinion. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (opinion of a physician based on a review of the entire record is of greater probative value than an opinion based solely on the veteran's reported history). Accordingly, service connection on a direct basis is unwarranted. Because the underlying claim of entitlement to service connection for right TKA is denied, and the Veteran is not service connected for any disorder, the issue of secondary service connection is moot. The Veteran is competent to state that he has problems with his right leg and that he injured the right lower extremity in service, and the Board acknowledges his opinion concerning the etiology of his knee disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (lay persons are competent to provide opinions on some medical issues). However, the existence of a right leg disability and a competent opinion on a matter as complex as the etiology of his current knee disabilities 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) (lay persons not competent to diagnose cancer). Thus, his views are of no probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the November 2012 VA examiner who thoroughly reviewed the claims file, considered the Veteran's claim of right lower extremity injury in service, examined the Veteran, found no right leg disability, and concluded that the knee disabilities are not related to service. See id.; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the service connection claims; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 57-58. ORDER Service connection for the residuals of a right TKA is denied. Service connection for the residuals of a right leg injury is denied. Service connection for the residuals of a left TKA, to include as secondary to a right TKA, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs