Citation Nr: 1313668 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 07-04 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active service from November 1976 to December 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issue of service connection for a lumbar spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The preponderance of the lay and medical evidence shows that the Veteran's right knee and left knee disabilities were not present in service or until many years thereafter and are not related to service or to an incident of service origin, including to his service-connected pes planus of the left foot. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by service or a service-connected disability; and may not be presumed to have been incurred during service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2012). 2. A right knee disability was not incurred in or aggravated by service or a service-connected disability; and may not be presumed to have been incurred during service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the claimant of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters dated in November 2002, April 2004, and January 2005. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claim for service connection, including the information and evidence to be submitted by him and the information and evidence to be obtained by VA. He was also apprised of how disability evaluations and effective dates are assigned, and of the type of evidence that impacts those determinations; and, in the 2005 letter, of the criteria for establishing service connection on a secondary basis. Although the 2005 letter was issued after the initial rating decision, the Veteran has demonstrated, since the filing of his claims, his understanding of the issue of secondary service connection. Additionally, the matter was readjudicated and Supplemental Statements of the Case were issued in 2009 and 2011, so the Board is satisfied that VA has met its duty to notify. As regards VA's duty to assist, evidence necessary for resolution of this appeal has been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, VA and private medical records, and the Veteran's lay statements. The Veteran was also accorded multiple VA examinations, during which the examiners reviewed the claims file, discussed the Veteran's history and symptoms with the Veteran, and conducted physical examinations; and the reports of these examinations is sufficiently detailed as to permit fair and equitable consideration of the merits of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In addition to the foregoing, the Board obtained an expert medical opinion on the issue of aggravation, and on review the Board finds that this evidence is also adequate for a decision in this matter. In short, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran; and does not prohibit consideration of this matter on the merits. See Pelegrini, 18 Vet. App. at 121; see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). The Board will therefore consider the merits of the Veteran's claims. II. Merits The Veteran seeks service connection for bilateral knee disorders. He does not report having right knee or left knee problems since service. Instead, he maintains that service connection is warranted because his right knee and left knee disabilities were caused or aggravated by his service-connected left foot pes planus disability. Service treatment records are unremarkable for any complaint, diagnosis, or treatment for either knee. On VA general medical examination in November 1995 the Veteran complained of left knee pain. Physical examination found no abnormalities, and there was no further comment, including diagnosis, regarding the knee. Post-service medical records show treatment for left knee complaints since 1996. VA treatment records dated in March 2000 inform that the Veteran had a normal gait with a cane to support his left side. Post-service medical records show treatment for right knee complaints since 2003. On VA joints examination in April 2003 the Veteran complained of weakness in the left leg, and the entire left leg was numb at the time of the examination. He also complained of locking, giving way, swelling, and grinding in the left knee, and said that his left leg problems had begun some three to four years prior to the examination. Diagnosis was early degenerative joint disease of the left knee. The examiner added that the Veteran's flat feet had nothing to do with his knee disorder. In April 2010 the Veteran was accorded another VA joints examination. He presented for examination using a cane and wearing braces on both knees, and his gait was antalgic. Diagnosis was degenerative degenerative joint disease, bilateral knees. The examiner then stated that the Veteran's bilateral knee complaints were not related to service or his left flat foot because there was no evidence of problems with the knees during service and because pes planus does not cause the knee problems that the Veteran has. He added that the Veteran's large/obese frame and history of diabetes with probable neuropathy had set up a significant load on the Veteran's his knees, and was likely the cause of the Veteran's complaints. In November 2012 the Board referred the matter for a VHA expert opinion, which was provided in February 2013. According to the medical expert, a VAMC Chief of Orthopedic Surgery and Professor of Orthopedic Surgery at Northwestern University Feinberg School of Medicine, flat feet do not cause or aggravate the knees, except where the person is knock-kneed. She added that unless there was some traumatic injury resulting in ligament or meniscal injury to the knee during service it was unlikely that his current knee problems were related to service or manifest in the first year after service; and reiterated that a flat feet condition has no bearing on and will not aggravate a knee problem, unless one has valgus knee/knock knee deformity. Principles of Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases listed at 3.309(a), if manifest to a compensable degree in the year after service. See 38 C.F.R. § 3.307(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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."). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Analyses The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence confirms that the Veteran presently suffers from bilateral knee pain; however, there is no evidence, whatsoever, of any knee complaints during service, and no record of arthritis in the year after service. In fact, the earliest evidence of a knee disorder is in 1995, many years after his separation from service. There is also no evidence of record that relates the Veteran's current knee complaints to service. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right knee and left knee disabilities had their onset in service. As for the Veteran's proposition that his knee problems are related to his service-connected left foot pes planus, the Veteran is not competent to offer an opinion on the relationship between one medical condition and another. See Kahana; see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). By contrast, two VA examiners and a VA orthopædic expert have each determined that that there is no relationship between the Veteran's knee problems and his service-connected pes planus, i.e., that the Veteran's knee problems were not caused, and are not aggravated, by his service-connected pes planus. Thus, the Board finds that the preponderance of the evidence is against service connection under the secondary (38 C.F.R. § 3.310) theory of entitlement. Owens. This leaves the record simply showing the onset of knee pain, diagnosed as degenerative disease, many years after service without any relationship to any incident of service, including a service-connected disability. This is not a basis upon which to establish service connection. As such, the weight of the evidence is against the claim and the benefit of the doubt standard of proof does not apply. Gilbert, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for right knee disability is denied. Service connection for left knee disability is denied. Service connection for a lumbar spine disorder is denied. REMAND In addition to the foregoing, the Veteran seeks service connection for a current lumbar spine disorder, which he states may be secondary to his service-connected left foot pes planus. On VA examination in April 2010 the diagnosis was congenitally narrowing lumbar spine with degenerative disc disease/degenerative joint disease, which the examiner stated was not related to service or to the Veteran's service-connected left flat foot disability because there was no evidence of problems with the lumbar spine during service and because pes planus does not cause the lumbar spine problems that the Veteran has. The examiner added that the Veteran's large/obese frame and history of diabetes with probable neuropathy had set up a significant load on the Veteran's lumbar spine, and was likely the cause of the Veteran's complaints. Unfortunately, it is not clear whether the Veteran's congenital disorder is a disease or defect, or whether the degenerative disc/joint disease was a superimposed disease on the congenital disorder during service. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (providing that congenital diseases, but not defects, may be service connected, although service connection may be granted for additional disability due to disease or injury superimposed upon a congenital defect during service). In November 2012 the Board referred the issue of service connection for a lumbar spine disorder for a VHA expert opinion on causation, including a possible nexus to the Veteran's service-connected left foot pes planus. In February 2013 a VAMC Chief of Orthopedic Surgery/Professor of Orthopedic Surgery at Northwestern University Feinberg School of Medicine advised that she was unable to comment without looking at x-rays, MRI films, and the report of a "proper examination." Additionally, while she indicated that the Veteran's "back problem was there before he joined the service," she did not identify the pre-existing disorder or state whether it was subject to worsening or instead is "static and immutable." As the nature of the Veteran's back disorder is unclear whether it was incurred in or aggravated by service, to include whether it is a congential disease or defect. It is also unclear whether an acquired lumbar spine disorder, diagnosed in 2010 as degenerative disc disease/degenerative joint disease, was incurred during active duty service or in the year thereafter, remand for a new VA examination, pursuant to the 2013 expert's report, is warranted. 38 C.F.R. § 3.159(c)(4). On remand post-service medical records compiled since January 2013 should be requested and associated with the claims file. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Associate, either physically or electronically with the claims file, the Veteran's treatment records dating from January 2013 from the New Orleans VAMC. Any additional records identified by the Veteran during the course of the remand should also be requested following receipt of any necessary authorization(s) from the Veteran. If no records are found, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination with regard to his claim for service connection for a lumbar spine disorder. The claims file must be made available to the examiner for review, and the examination report should reflect that such review was done. All indicated tests, including x-rays and MRI, must be done, and all findings reported in detail. The examiner should state the likelihood that any back disability found to be present existed prior to service. If the examiner concludes that a back disability found to be present existed prior to service, the examiner should indicate that likelihood that the back disability worsened during service. If the examiner diagnoses the Veteran as having a back disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In responding to the inquires below, the examiner if the disability is determined to be a congenital disorder, please state whether it is the type of condition that is subject to worsening, or is "static and immutable." If it is determined that a current lumbar spine disorder did not pre-exist the Veteran's entry into service and was not incurred during service (or, for arthritis, in the year after service), please opine as to whether it is at least as likely as not that a current lumbar spine disorder was caused by the Veteran's service-connected left pes planus disability, including any related gait problems. If it is determined that a current lumbar spine disorder did not pre-exist the Veteran's entry into service and was not incurred during service (or, for arthritis, in the year after service), please opine as to whether it is at least as likely as not that a current lumbar spine disorder was aggravated by the Veteran's service-connected left pes planus disability, including any related gait problems. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 3. After completing the above development, and any other development deemed necessary, readjudicate the claim on appeal. If the benefit sought remains denied, provide an additional Supplemental Statement of the Case to the Veteran and his representative and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs