Citation Nr: 1314016 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 08-32 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a right knee ligament disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to December 1992 with three months and 15 days prior active service. He also had prior service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). FINDING OF FACT The medical evidence of record does not show a diagnosis of a right knee ligament disorder. CONCLUSION OF LAW A right knee ligament disorder was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's service connection claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) 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. The RO's October 2008, May 2009, and July 2010 letters, provided after the initial adjudication of the service connection claim on appeal by the RO in July 2008, advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). These letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with these letters, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. After the notice letters were provided to the Veteran, the claim was readjudicated in a January 2013 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (finding that VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's pre-service private medical records, service treatment records, and identified private as well as VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided with a VA examination in conjunction with the claim on appeal in September 2012 to determine the nature and etiology of his right knee ligament disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Pursuant to the Board's September 2011 remand, this medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Pre-service private treatment records showed that the Veteran injured his right knee playing football in December 1976. Examination of the right knee at that time revealed no rotatory or collateral instability, but the knee lacked full extension, with pain, lateral joint line tenderness, and grade I anterior drawing. The impression was internal derangement of the knee. He subsequently underwent arthroscopic surgery on the right knee, plus lateral meniscectomy in February 1977. Postoperative diagnoses included tear of the lateral meniscus right knee and a tear of the anterior cruciate ligament (ACL) right knee. Private treatment notes dated in August 1977 showed the Veteran was getting along well, had good quadriceps muscle tone, and was discharged. Additional private treatment notes dated in February 1979 show the Veteran's complained of discomfort and a "strange feeling" in the medial aspect of the knee, described as occasional numbness after playing basketball. The physician noted that the right knee was perfectly stable and exhibited full, painless range of motion. The history portion of the Veteran's pre-enlistment examination dated in February 1981 indicated a history of right knee surgery in February 1977 for cartilage removal. The February 1981 Air National Guard enlistment examination report showed clinical evaluation of the extremities was normal. On the Veteran's enlistment examination in February 1984, the Veteran's lower extremities were found abnormal. The examiner noted a two inch surgery scar of the right knee. When summarizing the Veteran's defects and diagnoses, the examiner indicated that the Veteran underwent arthroscopic right knee surgery and was cleared by consultation. On orthopedic consultation in February 1984, there was full, painless range of motion of the right knee, without laxity, tenderness, crepitus, or effusion. The orthopedic examiner concluded that the Veteran had fully recovered from the pre-service injury and had a normally functioning right knee. In a June 1984 treatment record, an examiner listed a provisional diagnosis of "rule out" meniscal problem or joint floater. A June 1984 right knee x-ray report showed degenerative spurring of the intercondylar spines, with no evidence for a fracture or dislocation. An additional June 1984 health record reflected an assessment of internal derangement of the right knee. The Veteran injured his right knee in February 1992 and was put on physical profile for right knee pain. A February 1992 x-ray revealed very mild degenerative changes. A March 1992 magnetic resonance imaging report listed an impression of vertical tear of the posterior horn of the medial meniscus and moderate joint effusion with degenerative changes of medial and lateral compartments. He underwent arthroscopic surgery in April 1992. An inpatient treatment record listed diagnoses of Grade IV chondromalacia patella, right knee loose body, cleavage type posterior horn lateral meniscal tear, debridement of meniscal tear and partial lateral meniscectomy, right knee debridement of chondromalacia, and removal of loose body. A December 1992 Report of Medical History for the purpose of separation showed the Veteran marked no when asked if he had or now has a "trick" or locked knee. It was noted that he underwent knee arthroscopy in 1978 and 1992. Subsequent to service discharge, in a January 1994 VA joints examination report, the Veteran indicated that he had not noticed any locking, swelling, or instability, but occasionally wore a brace on his right knee. On physical examination, right knee range of motion was listed as flexion to 135 degrees and extension to zero degrees. The examiner noted no instability to varus or valgus stress of the right knee and no significant anterior cruciate instability, with some medial joint line tenderness to palpation. The examiner diagnosed history of two right knee surgeries for cartilage and ligament problems, with a negative exam. Private treatment records dated in May 2000 reflected an impression of patellofemoral syndrome of the right knee. VA treatment notes dated in May 2004 showed complaints of right knee pain. A May 2004 x-ray report listed an impression of mild degenerative change of the bilateral knee, left greater than right. In an August 2004 VA joints examination report, the examiner listed an assessment of right knee degenerative arthritis, with meniscal tear and history of lateral collateral ligament repair. After additional service treatment records were associated with the record in June 2008, the RO confirmed and continued the previous denial of service connection for status post repair of lateral meniscus and ACL of the right knee in a July 2008 rating decision. The Veteran formally appealed that determination. A June 2010 Board decision, determined that the Veteran's claim of entitlement to service connection for residuals of a repair of the lateral meniscus and anterior cruciate ligament of the right knee must be reconsidered, as additional pertinent service treatment records had been received and remanded this matter to the RO for readjudication. 38 C.F.R. § 3.156(c). In a August 2010 rating decision and supplemental statement of the case, the RO explained that entitlement to service connection for residuals of repair of the lateral meniscus had already been awarded but continued the denial of the Veteran's claim for entitlement to service connection for residuals of repair of the ACL of the right knee, as there was no current medical evidence that the condition was aggravated during service. The Board recharacterized the matter on appeal as entitlement to service connection for a right knee ligament disorder and remanded the matter for additional development in September 2011. Given the complexity of the Veteran's right knee disorders, the Board found that an examination was necessary to determine whether any right knee ligament disorder that pre-existed military service underwent an untoward permanent increase during military service, what current symptoms of the right knee were attributable to the pre-existing service ACL injury, and what symptoms of the right knee were attributable to the service incurred injury, and whether the Veteran's pre-existing right knee ligament disorder had been aggravated by a service-connected disorder. See, e. g., Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition). In the September 2012 VA examination report, the examiner diagnosed right lateral collateral ligament repair, with minimal degenerative joint disease, listing the date of diagnosis as 1992. The Veteran indicated that he hurt his right knee playing football in 1979 and underwent surgery for the lateral collateral ligament at that time. He reported having a second surgery for the lateral collateral ligament during service in 1992. He complained of intermittent diffuse pain in the right knee and guarding his right knee at work, reporting that his right knee did not feel as strong as his left. The Veteran detailed that he had worked at the post office as a distribution clerk since 1995 and was on his feet all day. He indicated that flare-ups impacted the function of his right knee, noting that standing made the knee ache. On physical examination, right knee range of motion was listed as flexion to 135 degrees, with painful motion beginning at 135 degrees, and extension to zero degrees, with no objective evidence of painful motion. The examiner noted that the right knee did not have any additional limitation in range of motion following repetitive-use testing and did not have any functional loss and/or functional impairment other than pain on motion and mild medial pain on hyperflexion. The right knee exhibited full strength and had no instability, painful scarring, history of recurrent patellar subluxation/dislocation, x-ray evidence of patellar subluxation, or residual signs and/or symptoms due to the 1992 meniscectomy. A September 2012 x-ray report revealed minimal degenerative joint disease of the knees. It was noted that the Veteran's knee condition impacted his ability to work, as he had to slow down and take it easier. A rating decision dated in March 1994 granted service connection for residuals of arthroscopy of the right knee, with chondromalacia patella and a lateral meniscus tear, post torn. However, entitlement to service connection for the repair of the ACL of the right knee was denied because it existed prior to entry into active duty and was not aggravated by military service. Service connection for degenerative arthritis of the right knee was granted in an October 2004 rating decision. After reviewing of the service treatment records, the pre-service and post-service medical records, conducting a clinical examination of the right knee, and with consideration of the Veteran's statements, the VA examiner opined that it was "less likely than not" that any right knee ligament disorder was found. In the cited rationale for why the evidence did not support a finding of a right knee ligament disorder/disability, the examiner noted the Veteran's reports of mild diffuse intermittent pain after prolonged standing at work at the post office and his surgical history of right knee surgeries prior to service and in 1992 during service. The examiner commented that records showed an arthroscopic surgery to repair a torn lateral collateral ligament and a partial meniscectomy in 1978 and an additional arthroscopic surgery for a cartilage tear. The examiner then highlighted the Veteran's assertions that he continued to play basketball and softball after those surgeries for another six years until 1998 when he injured his left knee playing basketball. The examiner further commented that the Veteran reported no recent assessments of either knee, indicated that he had not seen his knee surgeon in several years, and continued to ride his bike to work and for exercise. The examiner also drew attention to physical examination findings that were absent for laxity or focal tenderness of the right knee, as well as tenderness of the lateral right knee but showed larger calf circumference of the right knee and very good development of the lower extremities. The Board finds that service connection is not warranted for a right knee ligament disorder as the preponderance of the competent probative evidence demonstrates that the Veteran does not currently have a right knee ligament disorder nor did he ever have the disability at any time during the appeal period from 1994 forward. See McClain v. Nicholson, 21 Vet. App. 319 (2007) ( holding that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). In this case, the pre-service evidence of record showed that the Veteran underwent a right knee arthroscopy after sustaining a tear of the ACL in the remote past and prior to the current appeal, but the evidence of record during the current appeal period from 1994 to the present clearly shows that there was no resulting right knee ligament disorder. The Board is cognizant that post-service evidence of record reflects complaints of right knee pain and other right knee disabilities. However, pain is not a disability for which VA compensation can be awarded. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board further highlights that service connection is in effect for two right knee disabilities, residuals of arthroscopy of the right knee, with chondromalacia patella and a lateral meniscus tear, post torn, and degenerative arthritis of the right knee. In addition, the September 2012 VA examiner specifically opined that it was "less likely than not" any right knee ligament disorder was found. The September 2012 VA examination report is highly probative evidence on the issue of service connection for an additional right knee disorder because the examiner provided a rationale and relied on professional training and expertise, as well as an interview and examination of the Veteran. The examiner also reviewed the claims file, including pertinent medical history from the Veteran, as well as his lay statements, before reaching these conclusions. In the absence of proof of a present right knee ligament disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran asserts the existence of his claimed right knee ligament disorder. In this regard, the Veteran's statements are competent and credible evidence as to the symptoms he experiences because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, to the extent that the Veteran contends that he has a current right knee ligament disability based on the symptoms he currently experiences, the Board finds that such a determination is more suited to the realm of medical, rather than lay expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis of a current right knee ligament disability is too complex for a layperson to proffer a competent opinion. Id. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent diagnostic opinions. Moreover, the competent medical evidence demonstrates that this disorder was not found during the appeal period, and therefore, the Veteran's statements regarding the presence of this disorder are outweighed by the competent medical evidence. The criteria to establish entitlement to service connection for the claimed right knee ligament disorder have not been established, either through medical or competent lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to a right knee ligament disorder, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a right knee ligament disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs