Citation Nr: 1314027 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 06-29 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for left knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran served on active duty in the U.S. Air Force from April 1969 to December 1972 and in the U.S. Navy from December 1975 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This case was previously remanded by the Board in September 2009 to afford the Veteran a Travel Board hearing. The Veteran subsequently testified before the undersigned Veterans Law Judge at a Travel Board hearing in April 2010. A copy of the hearing transcript has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). In an August 2011 decision, the Board denied service connection for left hip, left knee, and low back disabilities. The Veteran's service treatment records had been previously reviewed by the RO when it adjudicated his claims, but was subsequently lost and were not available for review by the Board at the time of its decision. In October 2012, the Veteran's appeal was again before the Board. At that time, the Board noted that the Veteran's service treatment records had been located and associated with the claims file. It found that they contain findings relevant to the Veteran's left knee, and therefore the Board decided to reconsider that claim on a direct basis. See 38 C.F.R. § 3.156(c). However, as these records contained no additional information pertinent to the Veteran's left hip and low back claims, those previously denied claims were not be reconsidered. In October 2012, the Board remanded the Veteran's claim for service connection for a left knee disorder for further development. Such development has been completed, and the Veteran's claim has been returned to the Board for final adjudication. The Board further notes that, in April 2013, the Veteran submitted a new statement with attached evidence to the Appeals Management Center, who forwarded it to the Board. The Board finds that the statement and evidence submitted by the Veteran in April 2013 is either duplicative or cumulative of evidence previously of record and considered by the AOJ. Consequently, the Board finds that, despite the fact the Veteran did not waive AOJ consideration; it may proceed to adjudicate the Veteran's claim without prejudice to him. See 38 C.F.R. § 20.1304 (c). FINDING OF FACT None of the Veteran's current left knee disorders are etiologically related to his active military service or a service-connected disability. CONCLUSION OF LAW A left knee disorder was not incurred in or aggravated by active service, is not proximately due to, the result of, or aggravated by a service-connected disease or injury, and arthritis may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, notice was provided to the Veteran in May and October of 2004, prior to the initial AOJ decision on his claim. Additional notice was provided to the Veteran in July and October of 2010. The Board finds that the notices provided fully comply with VA's duty to notify. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran has submitted extensive evidence demonstrating his actual knowledge of the need to provide VA with information and evidence to support his claim. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. The Board notes that the Veteran has made several allegations that his service treatment records are not complete. After a review of the available service treatment records, however, the Board finds them to be comprehensive without any obvious lack of records. Consequently, without further evidence to support his allegations, the Board finds that the service treatment records are complete and no further effort need be undertaken to obtain or recover additional records. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The Veteran was afforded VA examination on his claim in August 2010. A revised medical opinion requested by the Board in its October 2012 remand was obtained in November 2012 from the VA examiner who performed the August 2010 VA examination after he reviewed the service treatment records that were not of record at the time he conducted the prior examination. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker at 1334. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. at 1335-36. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. at 1336-39. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include 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 means 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Direct Service Connection In February 2004, the Veteran filed a claim for service connection for a "bad left knee." In various lay statements and at his hearing in April 2010, the Veteran has stated that he started having left knee problems in service, and reported being treated five or six times in service for left knee complaints. He has related his left knee problem to multiple events that occurred in service to include (1) lifting and maneuvering heavy equipment while towing aircraft ground equipment on the flight line in Germany because he frequently worked alone and had to sit on the rear of the tractor he used to move the equipment and use his legs to push the equipment into place so that it could be attached to the tractor; (2) an injury to his left knee where an engine support dropped on it; and (3) an injury to his left foot after a lifting jack feel on it. The Veteran has also submitted multiple lay statements from various people. The Board notes that most of these lay statements do not mention the Veteran's left knee. Only the four statements from his coworkers (which are exactly the same just signed by different people) mention the Veteran's left knee in saying that they are aware that the Veteran had missed work because of multiple health problems to include his left knee. Initially, the Board addresses whether the Veteran has a current disability related to his left knee. The medical evidence demonstrates he was diagnosed on VA examination in August 2010 to have early patellofemoral arthritis. Private treatment records show that, in September 2009, he had a work-related injury diagnosed as left knee strain, and, in July 2010, he had another work-related injury to the left knee for which he underwent surgery in September 2011 for tears of the medial and lateral menisci, patellofemoral chondromalacia and synovitis. The Board notes that the Veteran's diagnosed patellofemoral arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a) and, therefore, the provisions if 38 C.F.R. § 3.304(b) apply to that disability. As for the other diagnoses of knee strain, synovitis and tears of the medial and lateral menisci, those are not listed and thus medical nexus evidence is required as set forth in 38 C.F.R. § 3.303(a) in order for entitlement to service connection to be established. A review of the Veteran's service treatment records for his first period of active service in the Air force from April 1969 to December 1972 show no complaints or treatment of the left knee except for in August 1972. An August 4, 1972, sick call note indicates the Veteran reported he dropped an engine support on his left knee that evening. X-ray was noted to be negative. He was advised to use an Ace bandage and heat to treat it. The Board also notes that the service treatment records indicate that the Veteran injured his foot in October 1972 when a jack fell on it while he was working on the flight line, it was his right foot rather than the left as he has stated. The records show that his right foot was casted for a couple of weeks. There is no indication, however, that such injury involved the Veteran's left knee or caused any problem with it. The Board further notes that the Veteran's separation examination was conducted in May 1972 prior to these two injuries being incurred. The Board notes that, on his Report of Medical History, the Veteran denied having any left knee problems and none were noted by the examiner on either history or examination. Furthermore, a November 24, 1972 note in the Veteran's service treatment records indicates he was provided a physical for college, which was noted to be "ok." Finally, the Veteran's service treatment records for his second period of active duty in the Navy from December 1975 to December 1981 fail to demonstrate any complaints or treatment related to the Veteran's left knee. On entrance examination in December 1974, no history or abnormality relating to the left knee was noted. On examination in August 1977, the Veteran denied on his Report of Medical History having a history of knee problems, and no left knee abnormality was noted upon examination. The clinical records during his active duty are silent for any complaints or treatment relating to his left knee. On a Report of Medical History dated in December 1979, the Veteran again denied a history of any knee condition. Finally, no left knee abnormality was found upon separation examination in October 1981. Based upon the service treatment records, the Board finds that there is a lack of evidence to support a finding that the Veteran had patellofemoral arthritis during or within one year of his periods of active duty. The service treatment records are silent for any diagnosis of patellofemoral arthritis and the first diagnosis is not seen until the August 2010 VA examination (even though X-rays were actually negative for findings of arthritis). Consequently, under the first prong of 38 C.F.R. § 3.303(b) that there be a chronic disability in service without any intervening cause, the Board finds that the preponderance of the evidence is against finding that patellofemoral arthritis was present during service or within one year after service. The Board must next consider whether there is evidence of a chronic condition in service or within one year thereafter, but that the condition was not shown to be chronic, and a continuity of symptomatology is established to support the claim. As just previously discussed, the service treatment records do not show a chronic condition of the left knee in service (i.e., patellofemoral arthritis) nor is it shown within one year of the Veteran's separation from either period of active duty. Furthermore, the Board finds that the evidence fails to establish a continuity of symptomatology of patellofemoral arthritis since service. The Board notes that a VA general medical examination conducted in January 1982 was negative for complaints of any left knee disorder although the Veteran did report his continued problems with his left hip. Moreover, the earliest evidence of a diagnosis of patellofemoral arthritis is the August 2010 VA examination and even at that time the diagnosis was based upon the examiner's physical examination of the Veteran rather than actual X-ray evidence of arthritis in the knee. Finally, a magnetic resonance imaging (MRI) study from September 2011 of the left knee failed to demonstrate arthritis. Rather, based upon surgery on the knee in September 2011, a diagnosis of patellofemoral chondromalacia was rendered. The Veteran has stated that his left knee pain began in service from the rigors of performing his duties at the air base in Germany and from injuries to his left knee and foot. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge (i.e., experiencing left knee pain and injuries during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The presence of patellofemoral arthritis, however, is a determination "medical in nature" and not capable of lay observation. A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology. 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions). Therefore, the Board finds that the Veteran's statements relating his currently diagnosed patellofemoral arthritis to his service or to the pain he has felt in his knee since service lacks probative value because the Veteran's statements do not constitute competent medical evidence. Based on the foregoing, the Board finds that the evidence fails to establish the presence of a chronic condition as listed in 38 C.F.R. § 3.309(a) during service or within one year after service, or that there was evidence of such a condition during service but no showing of chronicity with a showing of a continuity of symptomatology after service. Hence, service connection pursuant to the provisions in 38 C.F.R. § 3.303(b) is not warranted. The Veteran may, however, still be entitled to service connection if there is positive medical nexus evidence relating the Veteran's current left knee disorders to his military service. In the present case, the Board finds there is not. With regard to the torn menisci, knee strain and synovitis, the Board finds that the private medical records clearly demonstrate that these conditions were caused by work-related injuries. Consequently, these conditions are the result of intervening causes and cannot be related to the Veteran's active military service, from which he was discharged more than 26 years prior to the earliest work-related injury shown to be in 2007. As for the diagnosis of patellofemoral arthritis, the Board notes that the VA examiner who conducted the August 2010 VA examination has opined that it is not at least as likely as not that this was caused by the Veteran's military service. In October 2012, the Board sent the Veteran's claims file back to the examiner for him to reconsider his medical opinion given that the service treatment records were now available for review and show an injury to the left knee in August 2012. In a November 2012 addendum, after noting that the claims file was reviewed, the examiner noted his findings in August 2010 at the time of the examination. He noted that additional information not mentioned in the prior examination was: (1) On August 4, 1972, an engine support dropped on his left knee. X-rays were normal. He was treated with an Ace bandage and heat. (2) On January 21, 1982, he underwent a separation examination and he stated: "has no complaints except for the decreased hearing." The examiner again opined that the claimed left knee condition is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. His rational was that, at the time of examination, the knee was normal and X-rays were normal. Separation examination on January 21, 1982 indicated that the Veteran had no left knee complaints. There is no evidence that he was treated for the left knee on a regular basis on leaving the service. The injury sustained in August 1972, i.e., dropping an engine support on the knee, might produce a contusion or a fracture; however, it is unlikely to cause patellofemoral arthritis. Based on the evidence of record, the Board finds that service connection for a left knee disorder is not warranted. Although the Veteran is currently diagnosed to have left knee disorders, the overall weight of the evidence is against a finding that they were incurred in service. Rather the private treatment records demonstrate his knee strain, torn menisci and synovitis are due to intervening work-related injuries. Moreover, the VA examiner concluded that the Veteran's current patellofemoral arthritis was not related to military service. His conclusion was based on a review of the claims file, a history provided by the Veteran, and a physical examination. There is no other competent medical opinion in the record to refute these findings or to otherwise suggest that a left knee condition was incurred in service. The Board has considered the lay evidence submitted in support of the Veteran's claim. However, as noted above, the Veteran has not demonstrated the medical knowledge required to establish an etiological nexus between his left knee disorders and his military service. Nor do the lay statements from the Veteran's coworkers actually establish anything more than that he has current medical problems that affect his work to include problems with his left knee. Consequently, those statements have no probative value in determining whether the Veteran's current left knee disorders are related to his military service. Moreover, while the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, his service treatment records, the January 1982 VA examination, and the early private treatment records do not reflect complaints of knee problems, and there are no documented complaints for many years after service. In fact, although the Veteran filed his claim in February 2004, private treatment records provided as early as April 2002 are silent for complaints or treatment relating to his left knee. The earliest complaints seen are in a June 2005 private treatment record and then the assessment was simply left leg pain, edema, cellulitis and dermatitis, which appear to be related to a ruptured Baker's cyst the Veteran had a few years before on his left leg. The silence in these medical reports for complaints of or treatment for the left knee weighs heavily against any claim the Veteran now makes that he has had problems ever since service. The Board is not holding that corroboration is required. Rather, the Board finds his assertions to be less probative than the silent contemporaneous records. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, with respect to a merits review, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed.Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). See also McManaway v. West, 13 Vet. App. 60, 66-67 (1999) (the veteran's allegation as to continuity of symptomatology, standing alone, is not plausible in light of the absence of continuous symptomatology in the medical evidence of record). For these reasons, the Board finds that the preponderance of the evidence is against finding that service connection for a left knee disorder is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Secondary Service Connection The Veteran has also asserted that he developed a left knee disorder secondary to a left hip disability. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Available treatment records reflect that the Veteran is currently diagnosed with left knee patellofemoral arthritis. Unfortunately, service connection for a left hip disorder has not been established. Therefore, service connection on a secondary basis for left knee disorder as secondary to a left hip disorder is not warranted. ORDER Entitlement to service connection for a left knee disorder is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs