Citation Nr: 1315534 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 07-33 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for right knee and low back disorders secondary to a service-connected right ankle disability. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May 1965 to October 1965 and on active duty from June 1968 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2010, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in April 2010 and January 2012, at which time it was remanded for further evidentiary development. The case has returned and is again ready for appellate action. FINDING OF FACT The Veteran's diagnosed right knee and low back disorders are not causally related to his service-connected right ankle disability, and are not aggravated by his right ankle disability. CONCLUSION OF LAW Entitlement to service connection for right knee and low back disorders as secondary to or aggravated by a service-connected right ankle disability is not warranted. 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to right knee and low back disorders as secondary to a service-connected right ankle disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in April 2010 and January 2012, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to provide the Veteran with a VA examination for his right knee and low back disorders and associate a copy of the examination report with his claims folder. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was afforded a VA examination for his right knee and low back disorders in April 2010 with a supplemental opinion obtained in August 2012, and a report of the examination and supplemental opinion was associated with his claims folder. The Veteran's claim was readjudicated via February 2011 and September 2012 supplemental statements of the case (SSOCs). Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in March 2006, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating this claim. The evidence of record includes the Veteran's service treatment records, the Veteran's statements, and VA treatment records. Additionally, the Veteran was afforded a VA examination in April 2010 with a supplemental opinion obtained in August 2012. The VA examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, reviewed his claims folder, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report with supplemental opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of an attorney. He was afforded a personal hearing in February 2010. Accordingly, the Board will proceed to a decision as to the issue on appeal. Service connection for right knee and low back disorders Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran has specifically raised the matter of his entitlement to service connection for right knee and low back disorders on a secondary basis. See, e.g., the Veteran's notice of disagreement dated October 2006. There is nothing in the Veteran's presentation, or elsewhere in the record, which leads the Board to believe that service connection on a direct basis is contemplated. In Robinson v. Mansfield, 21 Vet. App. 545 (2008), the Court concluded that the Board is not required to sua sponte raise and reject "all possible" theories of entitlement in order to render a valid opinion. While the Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process, the Board is not required to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision. Thus, the Board will consider the Veteran's claim on a secondary service connection basis alone and not on a direct service connection basis. The Veteran contends that his service-connected right knee and low back disorders are related to his service-connected right ankle disability. It is undisputed that the Veteran is currently diagnosed with right knee and low back disorders, specifically osteoarthritis of the right knee and lumbar spine. See, e.g., the April 2010 VA examination report. Accordingly, element (1) has been satisfied. Additionally, the Veteran is currently service-connected for a right ankle disability. Element (2) is therefore also satisfied. Turning to crucial element (3), nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record supports a finding that the Veteran's current right knee and lower back disorders are not related to his right ankle disability. Specifically, the Veteran was afforded a VA examination in April 2010. In addition to the results of a current physical examination, the VA examiner considered the Veteran's history of right ankle injury, and that driving, walking, and standing aggravate his back and knee pain. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with osteoarthritis of the right knee and lumbar spine and also noted a normal evaluation of the right ankle. In a VA opinion dated August 2012, a VA examiner reviewed the Veteran's claims folder, to include the April 2010 VA examination, and concluded that it is less likely than not that the Veteran's current right knee and low back disorders are caused by, aggravated by, or the result of his service-connected right ankle disability. The examiner's rationale for his conclusion was based on his finding that the Veteran's gait is biomechanically normal. He also opined that the Veteran's current right knee and low back disorders are more likely as not to be the result of normal weight bearing on the lumbar vertebra/disc and on the knee joints over the past 40 years. Additionally, he stated that the Veteran's current lumbar condition is no worse than expected, based on the Veteran's age alone. Moreover, no biomechanical disadvantage was found on the Veteran's current examination, nor was instability or degenerative joint disease of the right ankle found. The examiner also indicated that he knew of no medical authority or peer reviewed medical literature which supported a relationship between the Veteran's right knee and low back disorders and his right ankle disability. The April 2010 VA examination with January 2012 supplemental opinion appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion. As was explained in the VCAA section above, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson, supra. "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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran's wife testified as to the symptomatology associated with his right knee, low back, and right ankle. The Board further notes that the Veteran and his wife are entirely competent to report his symptoms both current and past (including pain in knees and back). However, the Veteran and his wife, as lay people, are not competent to attribute any of his claimed symptoms of his right knee and low back disorders to his service-connected right ankle disability. The Veteran and his wife have presented no clinical evidence of a nexus between his right knee and low back disorders and service-connected right ankle disability. The Board finds that an opinion as to cause or aggravation of right knee and low back disorders requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran or his wife have the medical training to render medical opinions, the Board must find that their contentions with regard to a nexus between the Veteran's right knee and low back disorders and right ankle disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. As such, the statements offered by the Veteran and his wife in support of his own claim are not competent evidence of a nexus. Accordingly, the Veteran has not presented competent and probative evidence of a link between his service-connected right ankle disability and the symptoms of right knee and low back disorders. The medical opinion is entirely unfavorable to the claim. Element (3) of the required criteria for an award of service connection is not met, and the Veteran's claim fails on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right knee and low back disorders, claimed as secondary to service-connected right ankle disability. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for right knee and low back disorders secondary to a service-connected right ankle disability is denied. ____________________________________________ L.J. BAKKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs