Citation Nr: 1315187 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 02-10 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Kathy Lieberman ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961, until December 1963. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (the RO). This matter was previously before the Board in October 2003. At that time it was remanded to the RO via the VA Appeals Management Center (AMC) for additional development. In June 2006 the AMC issued a Supplemental Statement of the Case (SSOC) which continued to deny the Veteran's claims. The claims file was returned to the Board In October 2006, the Board again remanded the case. The requested development was completed. In September 2007, the AMC issued a SSOC which continued to deny the Veteran's claims. The claims file was returned to the Board. The claims were denied by the Board in April 2008. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in December 2009, the Court granted a Joint Motion for Remand, remanding these claims back to the Board. In May 2010, the Board again remanded this matter to the RO for additional development. In August 2012, the RO issued a SSOC which continued to deny the Veteran's claims. The claim was then returned to the Board for appellate disposition. FINDINGS OF FACT 1. The competent and probative medical evidence of record demonstrates that the Veteran's knee condition is not related to his military service or any event in service. 2. The competent and probative medical evidence of record demonstrates that he Veteran's back condition is not related to his military service or any event in service. CONCLUSIONS OF LAW 1. A bilateral knee condition was not incurred in or aggravated by service, nor may such condition be presumed to be. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011). 2. A back condition was not incurred in or aggravated by service, nor may such condition be presumed to be. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 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. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO informed the Veteran of VA's duty to assist him in the development of his claim in letters dated May 21, 2001, December 28, 2004, and April 2, 2007, that contained all of the required notice. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs), Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, VA provided the Veteran with medical examinations that were adequate because the examiners reviewed the claims file, took a full medical history, conducted the appropriate diagnostic testing, and provided rationales for the ultimate medical opinions. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Bilateral knee disability The Veteran contends that his current bilateral knee disability is related to a fall sustained in military service while running during physical training. A review of the Veteran's STRs revealed a report of a fall on his left knee in August 1963 with a report of pain on flexion. As an aside, the Veteran claims that both of his knees were injured in the fall. The Veteran was diagnosed with left knee strain. He was subsequently seen for follow up treatment and treated with pain medication and rest. Imaging conducted with the Veteran's treatment showed no abnormalities and the Veteran's pain improved over time. The Veteran's exit physical examination did not reveal any bilateral knee disorder. Further, the Veteran's STRs are absent for any discussion of arthritis of the knees. With respect to the one year presumptive period found in 38 C.F.R. § 3.309(a), there are no medical records of any kind from the Veteran's separation from service in 1963 until the Veteran was administered a VA examination in 1983. Although the 1983 VA examination was administered for an eye disability, it was performed as a general examination of the Veteran's overall health. In this regard, there was no reference made to bilateral knee pain or arthritis of any kind. The first reference to arthritis of the knees in the Veteran's medical records appears in the VA treatment records from the early 1990s, well after the end of the one-year presumptive period. The medical record shows that the Veteran was under the care of a private physician, Dr. U., for the treatment of his bilateral knee disability. However, these records are absent for a discussion of etiology, and fail to relate his condition to the Veteran's military service. SSA records show a diagnosis of bilateral knee degenerative arthritis in January 1992. These records were also void of a discussion of etiology, and do not relate the a knee condition to the Veteran's military service. The Veteran was administered a VA examination in June 2001. At that examination, the examiner diagnosed the Veteran with degenerative joint disease of both knees based upon X-ray findings from the VA Medical Center dated October 1993. The examiner did not provide an opinion regarding etiology of the Veteran's bilateral knee disability. The Veteran was administered another VA examination in June 2004. The examiner provided an addendum opinion to the original June 2001 VA examination, and opined that the Veteran's current bilateral knee disability was not etiologically related to the Veteran's left knee injury in service or any other in-service findings regarding the knees. Rather, the examiner opined that the Veteran's disability was related to the natural aging process. The Veteran was administered another VA examination in February 2011. The examiner diagnosed the Veteran with bilateral knee degenerative joint disease. The examiner concurred with the June 2004 VA examiner's opinion and that the Veteran's bilateral knee disorder was related to the natural aging process and not trauma from the military. In support, the examiner provided that there was no medical evidence of treatment of this condition from the time the Veteran left service in 1963 to when he was first diagnosed in 1992. The examiner stated that the lack of objective evidence of treatment and the time lapse supported that the Veteran's incident in service was unique and not related to his currently diagnosed degenerative joint disease. The Veteran was given an additional VA examination July 2012; bilateral knee osteoarthritis was diagnosed. The examiner opined that the Veteran's currently diagnosed bilateral knee disability was less likely than not related to military service. In support, the examiner found that the Veteran had been originally diagnosed with left knee strain in service, and stated that a strain is an acute condition and tends to resolve over time. The most recent imaging results showed mild bilateral osteoarthritis in the Veteran's knees, which is a normal finding in a person of the Veteran's age, as this particular type of arthritis is a degenerative condition that worsens with age. Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disability, so the appeal must be denied. It is noted that the first and second elements of service connection as outlined in Hickson are met, as the evidence shows that the Veteran has a currently diagnosed bilateral knee disability of osteoarthritis/degenerative joint disease and that there was an in-service injury of the Veteran's left knee, with the Veteran providing lay testimony that he injured the right knee in that same incident as well. However, the third element outlined in Hickson, that which requires a causal relationship between the present disability and the disease or injury incurred or aggravated during service, has not been met. The only medical evidence of record that discusses etiology, namely the June 2004, February 2011, and July 2012 VA examinations, all provided negative nexus opinions. These opinions went further in explaining that the Veteran's current knee disabilities are due to the natural aging process and not trauma. In particular, the July 2012 VA examiner went even further to explain that the particular type of arthritis affecting the Veteran is a degenerative type that worsens with age. The Veteran's private and VA treatment records, while showing continued treatment for the Veteran's knee disabilities since the early 1990s, did not provide a discussion of etiology. As such, the medical evidence of record fails to establish a nexus between the current disability and service. It has been the Veteran's contention that his knees have been bothering him continually since service. The Board notes the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology. As discussed above, there is no objective medical evidence of knee complaints for decades after service. Supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) (there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent). Such evidence is lacking in this case. The Veteran's lack of complaints for almost 30 years after service supports the June 2004, February 2011 and July 2012 VA examiners' opinions that the aging process and not his service was the cause of his knee problems. Furthermore, it appears that the VA examiners noted the Veteran's lay testimony of complaints of continued knee problems since military service. However, despite these lay assertions, the VA examiners implicitly found that, based upon their medical expertise, the Veteran's current bilateral knee disability was appropriately explained by the natural aging process. Continuity of symptomatology after service is therefore not demonstrated. Back disability The Veteran contends that his current back disability is related to a fall sustained in military service while running during physical training. A review of the Veteran's STRs revealed a report of a fall in August 1963 with a report of pain. The Veteran was diagnosed with low back strain. He was subsequently seen three additional times for follow up treatment and slight muscle spasms of the lumbar area were revealed. He was treated with pain medication and rest. Imaging conducted with the Veteran's treatment showed no abnormalities and the Veteran's pain slightly improved over time. The Veteran's exit physical examination did not reveal any low back disorder. Further, the Veteran's STRs are absent for any discussion of arthritis of the lower back. With respect to the one year presumptive period found in 38 C.F.R. § 3.309(a), there are no medical records of any kind from the Veteran's separation from service in 1963 until the Veteran was administered a VA examination in 1983. Although the 1983 VA examination was administered for an eye disability, it was performed as a general examination of the Veteran's overall health. In this regard, there was no reference made to low back pain or arthritis of any kind. The first reference to a low back disability in the Veteran's medical records appears in the VA Medical Center treatment records from the early 1990s, well after the end of the one year presumptive period. The medical record shows that the Veteran has received treatment for his low back disability at the VA Medical Center since 1992 when he was diagnosed with mild lumbar spondylosis and a small spina bifida occulta at S-1 level. With the exception of the VA examinations discussed in further detail below, VA treatment records were absent for a discussion of etiology of the Veteran's low back condition to military service. The medical record also shows that the Veteran was under the care of a private physician, Dr. U., for the treatment of his low back disability. In January 2001, Dr. U. submitted a medical certificate, in which he stated that he had treated the Veteran for his back disorder, and that it had been a problem since 1963. No further elaboration was given of how the Veteran's current low back disability was related to events or injuries sustained in military service or upon what basis he was providing that opinion other than upon the Veteran's subjective history. The earliest record available for Dr. U. appears to be September 1997, in which an imaging report showed lumbar levoscoliosis and lumbar spondylotic changes at L3, L4, and L5. The most recent treatment records from Dr. U. in 2012 reveals back pain radiating to the lower extremities and mild spondylosis of the lumbar spine with a defect in the spinous process of S1, which was determined to be most likely spina bifida occulta. These records were absent for a discussion of etiology of the Veteran's low back disability to military service. The Veteran was examined by VA in June 2001. At that examination, a diagnosis of degenerative sacroilitis of the lumbar spine was provided. The examiner did not give an opinion regarding etiology of the Veteran's low back disability. The Veteran was given another VA examination in June 2004. The examiner provided an addendum opinion to the original June 2001 VA examination. The examiner opined that the Veteran's current low back disability was not secondarily or etiologically related to the Veteran's low back injury in service or any other in-service findings. Rather, the examiner opined that the Veteran's disability was related to the natural aging process and the Veteran's post-service occupational exposure to heavy work as a factory foreman for several years. The Veteran was administered another VA examination in February 2011. The examiner diagnosed the Veteran with lumbar myositis and mild lumbar spondylosis. The examiner opined that the Veteran's current low back disability was related to the natural aging process and not to the incident in service. In support, the examiner provided that there was no medical evidence of treatment of this condition from the time the Veteran left service in 1963 to when he was first diagnosed in 1992. Also, the fact that the Veteran performed heavy labor after service requiring lifting and carrying supported a finding that the current low back disability is more likely related to that post-service accumulated stress than to the injury sustained in service. The Veteran was administered an additional VA examination in July 2012. The examiner diagnosed the Veteran with degeneration of the lumbar intervertebral disc and spondylosis of the lumbar spine. The examiner opined that the Veteran's currently diagnosed low back disability was less likely than not related to military service. In support, the examiner provided that the Veteran had been originally diagnosed with lower back strain in service, which is an acute condition and tends to resolve over time. Imaging results from May 2002 showed right lateral focal disc protrusion at L4-5 with narrowing of the right neural foramina and possible compression of the right L4 exiting nerve, which is a consistent finding in a person who has performed the types of occupational tasks that the Veteran endured during his post-service employment. Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a low back disability, so the appeal must be denied. It is noted that the first and second elements of service connection as outlined in Hickson are met, as the evidence shows that the Veteran has a currently diagnosed low back disability and that there was an in-service injury of the Veteran's lower back, with treatment for acute low back strain. However, the third element outlined in Hickson, that which requires a causal relationship between the present disability and the disease or injury incurred or aggravated during service, has not been met. Although the Veteran submitted a positive nexus opinion from his private physician, Dr. U., it appears that the physician provided his opinion in sole reliance on the Veteran's lay statements that his condition was related to an injury sustained in military service, as there is no objective evidence to suggest otherwise in the medical record. The Board notes that, while the Veteran himself believes that a connection exists between the in-service injury to his lower back and his current low back disability, it is well established that lay persons without medical training, such as the Veteran, are not competent to make a finding on medical matters such as cause of a disability. See Espiritu, 2 Vet. App. at 494- 5; see also 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). Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1336. However, the statement offered by the Veteran is not competent medical evidence and does not serve to establish a medical nexus. The Board does not assign significant weight to Dr. U.'s opinion because it is provided in part on an incorrect factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based on an inaccurate factual premise has no probative value). Further, the opinion fails to provide an adequate rationale or in depth discussion of the relationship between the Veteran's current low back disability and his military service. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The only remaining medical evidence of record that discusses etiology, namely the June 2004, February 2011, and July 2012 VA examinations; all provide negative nexus opinions. These opinions went further in explaining that the Veteran's current low back disability is due to a combination of the natural aging process and post-service occupational stress and not trauma. In particular, the July 2012 VA examiner went even further to explain that the particular type of back disability affecting the Veteran, as shown in his 2002 imaging report, indicated that the low back disability was more likely related to post-service employment than the acute injury sustained in military service. The Veteran's private and VA treatment records, while showing continued treatment for the Veteran's low back disability since the early 1990s, did not provide a discussion of etiology, other than the certificate from Dr. U. as discussed above. In light of the lack of evidence to the contrary and the low probative value of the only positive nexus opinion provided, the medical evidence of record fails to establish a nexus. It has been the Veteran's contention that lower back been bothering him continually since service. The Board notes the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology. As discussed above, there is no objective medical evidence of low back complaints for decades after service. Supporting medical evidence is required. See Voerth, 13 Vet. App. at 120-1. Such evidence is lacking in this case. The Veteran's lack of complaints for almost 30 years after service supports the June 2004, February 2011, and July 2012 VA examiners' opinions that the aging process and post-service employment and not his service was the cause of his low back problems. Furthermore, it appears that the VA examiners noted the Veteran's lay testimony of complaints of continued low back problems since military service. However, despite these lay assertions, the VA examiners implicitly found, in their medical expertise, that the Veteran's current low back disability was appropriately explained by the natural aging process and post-service employment. Continuity of symptomatology after service is therefore not demonstrated. ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a back disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs