Citation Nr: 1315066 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 06-25 169A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to service connection for a left knee disorder on a direct basis. 2. Entitlement to service connection for a left knee disorder, claimed as secondary to the service-connected degenerative disc disease of the lumbar spine. 3. Entitlement to an initial rating in excess of 10 percent for the degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from December 1950 to April 1955. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision issued by the RO in Seattle, Washington. In July 2008 the Veteran testified during a Board hearing before a retired Veterans Law Judge at the RO in Seattle, Washington; a transcript of that hearing is of record. The Veteran was given the opportunity to request another Board hearing. In March 2012, the Veteran indicated that he did not wish to have another Board hearing and requested that his case be considered based on the evidence of record. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In September 2010, the Board denied the Veteran's claim of entitlement to service connection for a left knee disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In October 2011, the Court granted the parties Joint Motion for Remand (JMR) vacating the September 2010 decision and remanding the matter for further development. The Board remanded the case for further development in March 2012. That development was completed and the case has been returned to the Board for appellate review. During the pendency of the appeal, the Veteran requested that his claims file be transferred to the jurisdiction of the RO in San Diego, California. Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal herein decided. 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). The issues of entitlement to service connection for a left knee disorder, claimed as secondary to the service-connected degenerative disc disease of the lumbar spine and entitlement to an initial rating in excess of 10 percent for the degenerative disc disease of the lumbar are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Degenerative joint disease of the left knee (now status post left total knee replacement) was not manifest during service or within one year of separation. Left knee arthritis is not directly due to service. CONCLUSION OF LAW Degenerative joint disease of the left knee was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an October 2008 letter issued subsequent to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for the claimed left knee disorder, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. After issuance of the October 2008 letter, and opportunity for the Veteran to respond, the January 2013 Supplemental Statement of the Case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue herein decided. In addition, the Veteran was afforded (most recently) a VA examination in May 2010 in connection with his claim for service connection for the claimed left knee disorder. As discussed below, the Board finds that the examination and medical opinions obtained regarding the Veteran's claim for service connection for a left knee disorder on a direct basis are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal herein decided has been met. 38 C.F.R. § 3.159(c)(4). Further, the Board is aware that this appeal was, most recently, remanded by the Board in March 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO request and obtain outstanding VA treatment records. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he 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 notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Finally, during the hearing the retired VLJ clarified the issues and addressed the Veteran's contentions. It was clear from the hearing that the parties understood the issue and the VLJ accepted additional evidence with waiver of RO initial consideration. Such actions supplement VCAA and complies with 38 C.F.R. § 3.103. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As noted, arthritis is a chronic disease. 38 U.S.C.A. § 1101. The appellant does (did) have arthritis of the left knee. Service connection may also be granted for any injury or disease diagnosed after discharge, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran's service treatment records document that in July 1952 he bruised both knees in a car accident. There was no clinical evidence of fracture. Otherwise, there were no complaints of, treatment for or diagnosis of symptoms related to a left knee disorder. The April 1955 report of separation examination reflects that clinical evaluation of the Veteran's lower extremities and other musculoskeletal was normal. In this case, the Veteran asserts that his left knee disorder onset was due to disease or injury sustained in service. In a June 1979 report of VA examination, there were no complaints of, treatment for or diagnosis of symptoms related to a left knee disorder. A December 1985 report of medical examination of the Department of Labor and Industries (Industrial Insurance Division) reflects that the Veteran sustained injury in October 1980 during the course of his employment at the Housing Authority of Grant County. The Veteran reported that he was arising from a squatting position and that as he rose, turned and pivoted, he sustained a sudden and acute discomfort in his right knee. He complained that he was developing problems in his left knee that he felt were secondary to favoring the right knee. X-ray results of the left knee showed degenerative changes. March 1996 VA treatment records document treatment for degenerative joint disease of the left knee; total left knee arthroplasty was performed in March 1996. A December 1998 operative report for right total knee arthroplasty indicates the Veteran underwent left total knee arthroplasty in March. The operative report indicates that the left total knee arthroplasty was successful. A February 2002 discharge summary for a surgical procedure performed for the right total knee arthroplasty indicates that the Veteran's left knee had been asymptomatic since the left total knee arthroplasty. In the report of December 2005 VA fee basis examination, the Veteran reported that he injured his left knee in a jeep accident during service when he hit both knees on the dashboard. He reported that he had total knee replacement performed in both knees; however, he continued to have painful range of motion of the knees with resultant impaired ambulation. He could not walk very far and had lost time from work (he was currently unemployed). Review of medical records confirmed that the Veteran had undergone total knee replacement bilaterally. The left knee was asymptomatic; however, the right knee caused problems. Objectively, there was tenderness in the left knee with a scar and swelling in the prepatellar area. There was a slight degree of recurrent subluxation of the left knee. He did have full range of motion of the left knee; however, pain, fatigue, weakness, lack of endurance and incoordination did cause additional limitation of motion (that could not be quantified). Drawer test was within normal limits on the right and left. X-ray results showed foreign body present and prosthesis in place. There was a fragment of soft tissue posterior to the patella and peripheral vascular disease was noted. Final diagnosis was status post left knee prosthesis with osteoporosis. The examiner noted the service injury and "the opinion is 'C,' at least likely not caused by or a result of service-connected injury. The Veteran has multiple entries of treatment for ... knees on medical records and complication of surgeries of the knees occurred which were reflected in C-file." The examiner concluded the knee and back disorders had significantly affected some activities of daily living. A July 2006 addendum opinion focused solely on the right knee disorder and made no mention of the left knee disorder currently on appeal. In any event, the examiner opined that it was not likely that the current right knee disorder was due to the military injury in 1952. In this regard, the examiner explained that there was no record of treatment between 1952 and the 1990's of a right knee disability. Further, the Veteran's choice of employment post service, semi-truck driver, brake repair shop foreman, and housing maintenance, seemed to indicate adequate function of the right knee post service. In September 2008, the Board remanded the claim for a clarifying opinion as to etiology of the left knee disorder. Pursuant to the September 2008 Board remand, the Veteran was afforded another VA examination in March 2010. In the report of March 2010 VA examination, the orthopedist indicated the claims file had been reviewed. The physician noted the Veteran's military occupational specialty, light weapons platoon leader, and post service occupations, including interstate trucking driver and locksmith. The physician noted the knee injury in service in July 1952; also noted was an unconfirmed report of surgery on the left knee in the 1970s. The physician noted the December 1985 Workman's Compensation records and explained that the x-ray findings of left knee degenerative changes were consistent with normal degenerative changes secondary to age, with no evidence of accelerated degeneration. Thus, the physician concluded that it was less likely than not that the Veteran's left knee disorder was related to the military service injury or accelerated by the Veteran's period of service. In the report of a follow-up May 2010 VA examination, the examining orthopedist indicated the claims file had been reviewed. The Veteran complained of knee pain that disturbed his sleep. He complained that his joint would "jump out of socket." Activities of repetitive usage and prolonged weight bearing escalated his symptoms. He also complained of knee pain, weakness and stiffness. The examiner recorded the military and occupational history associated with the Veteran's left knee disorder which remained wholly unchanged from the March 2010 report. Upon objective examination, the diagnosis was bilateral total knee arthroplasties with residuals. The examiner repeated his opinion that it was less likely than not that the Veteran's left knee disorder was related to the military service injury or accelerated by the Veteran's period of service. This opinion was based on the review of the history and medical records available, the examiner's medical experience, and a lack of physical evidence indicating a nexus between the acute but transient injury in service and the Veteran's current left knee disorder. In this case, there are conflicting opinions regarding whether the Veteran's current left knee disorder is related to disease or injury sustained in service. The Board is responsible for assessing the credibility and weight to be given to the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Such assessments extend to medical evidence. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the examiner who stated in the December 2005 report of VA fee basis examination that the Veteran's current left knee disorder was at least likely not caused by or a result of service-connected injury failed to provide any rationale for his statement. In contrast, in the March and May 2010 reports of VA examination, the orthopedist provided a clear and thorough rationale in rendering his opinion. The Board notes that the VA orthopedist's opinion was based on the review of the Veteran's reported history and medical records available (including the December 2005 VA fee-basis examination), the examiner's medical experience, and a lack of physical evidence indicating a nexus between the acute but transient injury in service and the Veteran's current left knee disorder. For these reasons, the Board finds the March and May 2010 VA medical opinions to be more probative. While the Veteran contends that his left knee disorder had onset due to disease or injury sustained in service, the Board points out that the more probative opinion concludes that there is no relationship, or nexus, between the current left knee disorder and the Veteran's active service. The knees were normal at separation and there are no complaints of left knee disability until many years after service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no evidence of arthritis of the left knee shown in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 2013 WL 628429 at *8. The Board acknowledges the July 1952 service treatment record reflects that the Veteran bruised both knees in a car accident. However, no examiner at the time, or since, has established that this isolated finding was sufficient to establish chronicity. In sum, although there was an in-service trauma, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted. Additionally, there is no assertion of continuity of symptomatology (a fact acknowledged at the July 2008 Board hearing) and there is no evidence of arthritis within one year of separation from service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. The only other evidence of record supporting the Veteran's claim is his various general lay assertions. In this case, the Board finds that the Veteran is competent to state that his left knee disorder is due to disease or injury in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the appellant is competent to relate what an examiner has related in the record and may be competent to relate that arthritis may follow trauma. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). However, his lay assertions are in conflict with the overall findings of the evidence of record and the more probative evidence regarding etiology tends to weigh against such a finding. Thus, the Board finds that the lay opinion is less informed, less probative and less credible than the reasoned medical opinion. The Board finds the opinion of the VA orthopedist in the March and May 2010 reports of VA examination to be more probative. The VA orthopedist is a medical professional who has reviewed the claims file, considered the reported history and performed physical examination. The orthopedist used his expertise in reviewing the facts of this case and determined that the current left knee disorder was unrelated to the disease or injury incurred during the Veteran's service. It is clear that the orthopedist fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that the current left knee disorder was related to causes other than disease or injury incurred during the Veteran's period of service. The Veteran has not suggested that the March and May 2010 examinations were performed in an insufficient manner. For the foregoing reasons, the Board finds that the claims of entitlement to service connection for a left knee disorder on a direct basis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a left knee disorder on a direct basis is denied. REMAND In his February 2005 notice of disagreement, the Veteran also asserts that his left knee disorder "is secondary service connection due to lumbosacral strain." The Board notes that under 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006) (see 38 C.F.R. § 3.310(b)). In this case, the Board finds that the evidence of record, including that noted above, fails to address the Veteran's contention of secondary service connection, i.e., whether the claimed left knee disorder was caused or aggravated by the service-connected degenerative disc disease of the lumbar spine. Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under these circumstances, the Board finds additional VA examination is necessary to address whether the claimed left knee disorder, was caused or aggravated by his service-connected degenerative disc disease of the lumbar spine. With regard to the Veteran's claim for entitlement to a rating in excess of 10 percent for the service-connected degenerative disc disease of the lumbar spine, the Board notes that, in December 2010 Veteran submitted correspondence expressing disagreement with the 10 percent rating assigned for his lumbar spine disability. To date, however, the RO has not issued a statement of the case (SOC) regarding this particular issue in response to the Veteran's notice of disagreement (NOD). Therefore, remand is necessary to cure this defect. See 38 C.F.R. §§ 19.9, 20.200, 20.201; see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The RO should return the claims file to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should issue a SOC addressing the issue of entitlement to a rating in excess of 10 percent for the service-connected degenerative disc disease of the lumbar spine. The Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. 2. The AOJ should refer the file to an appropriate examiner to determine whether it is at least as likely as not the service-connected degenerative disc disease of the lumbar spine caused or aggravated the Veteran's left knee disability? If aggravation of the left knee disorder by the service-connected degenerative disc disease of the lumbar spine is shown, the examiner should objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. A complete rationale must be given for all opinions and conclusions expressed with the medical bases for the conclusions set out. 3. After completion of the above development, the Veteran's claim of entitlement to service connection for a left knee disorder, claimed as secondary to the service-connected degenerative disc disease of the lumbar spine should be readjudicated. If the determination remains adverse to him, he should be furnished with a Supplemental Statement of the Case. Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs