Citation Nr: 1315865 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-01 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left foot condition. 2. Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected left foot condition. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January August 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal was remanded by the Board for additional development in May 2011 and September 2012. A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, namely VA treatment records dated between September 2007 and May 2009. FINDINGS OF FACT 1. Service connection is in effect for low back derangement, left great toe amputation and for amputation of the other toes of the left foot, which are evaluated as 40 percent, 30 percent and 20 percent disabling, respectively. 2. The preponderance of the evidence shows that the Veteran's current right knee disorder was not present in service or until many years thereafter, and is not related to service or a service-connected disability. 3. The preponderance of the evidence shows that the Veteran's current left knee disorder degenerative joint disease, was not present in service or until many years thereafter, and is not related to service or a service-connected disability. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in service, and may not be presumed to have been so incurred, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 2. A left knee disorder was not incurred in service, and may not be presumed to have been so incurred, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability rating. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); 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. Id. In this case, the duty to notify was satisfied by way of a letter sent to the appellant in September 2008 that fully addressed all notice elements and was sent prior to the initial adjudication of his claim in January 2009. The letter informed him of what evidence was required to substantiate the claim and VA's respective duties for obtaining evidence. In addition, letter advised the Veteran of how to substantiate a claim for secondary service connection. He was also asked to submit evidence and information in his possession to the RO. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished and the Board will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private treatment records. The Board notes that the Veteran was afforded VA examinations regarding his claims. VA examined the medical history of the claimed conditions for compensation purposes addressing these claims. Findings from the examination reports are adequate for the purpose of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 12, 124 (2007). This case was previously before the Board and was remanded in May 2011 for the RO to obtain private and VA treatment records and to provide the Veteran with a VA medical examination to determine the nature and etiology of his right and left knee conditions. It was also remanded in September 2012 in order to associate VA treatment records with the claims file. There has been substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a 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). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service treatment records do not reflect any complaints or treatments for a right knee or a left knee disorder during service. The Veteran's treatment records do indicate that in November 1970, all five toes on his left foot were amputated due to an accident involving an elevator door. In a post-service VA examination dated in December 2008, the Veteran was diagnosed with bilateral chronic knee strain and degenerative joint disease of the left knee. The Veteran indicated that the onset of his knee problem was in 2005. It was noted that the Veteran experienced stiffness in both knees and pain after prolonged standing or walking. The examiner noted that the Veteran suffered from functional limitations and an antalgic gait. X-rays of the left knee showed minor degenerative changes of the medial side. Upon examination, the examiner opined that the claimed bilateral knee condition was less likely as not caused by or the result of the Veteran's service-connected toe amputation. The examiner concluded that based on minimal findings supporting significant knee abnormalities that it was unlikely that the knee problem would appear abruptly after 30 years if it was related to the service-connected disorder. The examiner stated that the onset was more likely related to natural progression based on aging. An April 2009 written statement from Dr. Kwiat, a private physician, indicated that the Veteran experienced gait and balance problems due to the absence of his left forefoot. The private physician concluded the abnormality of the Veteran's gait caused knee pain and dysfunction. The Veteran was afforded a VA examination in August 2011. The examiner noted the onset of the Veteran's bilateral knee disability was in 2007. The Veteran stated that he developed problems such as throbbing pains in his knees because his foot turned in and he felt pain in his right knee because he favored his left knee. The examiner diagnosed the Veteran with right knee strain and mild degenerative joint disease in the left knee. The examiner opined that it was less as likely as not that the bilateral knee condition was related to the Veteran's period of active military service as the examiner noted that there was no indication in the Veteran's service treatment records of a knee condition. The examiner also stated that it was less as likely as not that the Veteran's bilateral knee condition had its onset in service because reports of the onset of knee problems began 30 years after service. In addition, the examiner opined that it was less likely as not that the bilateral knee condition was caused and/or aggravated by the service-connected condition of the left foot or low back. The examiner noted that since the Veteran's knee condition is mild and of recent onset, the current knee condition was more likely due to the natural process of aging. The examiner also noted that the X-rays taken during the present examination, when compared to the X-rays taken at the 2008 VA examination, showed no change in the Veteran's condition. The examiner opined that the lack of change suggested that the Veteran's knee condition was not related to a worsening foot condition. The examiner also noted that the Veteran's service-connected low back condition was less as likely as not causing or aggravating the current knee condition, since the back condition's onset was around the same time as the Veteran's left knee condition's onset, which suggested a generalized arthritic process. In September 2011, the claims file was returned to the August 2011 examiner for an addendum. Here, the examiner reviewed the April 2009 written statement from the Veteran's private physician, Dr. Kwiat. The examiner also reviewed the October 2008 VA ambulatory notes indicating that the Veteran was experiencing left knee pain which was new. The examiner also reviewed the Veteran's physical therapy notes from May 1995 and June 1996 which reflected low back and left leg pain. The examiner noted that Veteran was treated for exacerbation of his low back condition after a 1994 accident but that the Veteran's bilateral knee condition occurred years later. The examiner opined that the Veteran's mild degenerative joint disease did not occur until 2007 and that it is less as likely as not that his bilateral knee condition was due to his service-connected low back condition. Given the evidence of record, the Board finds that the preponderance of the evidence shows that service connection for a right knee disorder, to include as secondary to service-connected left foot condition and service connection for a left knee disorder, to include as secondary to service-connected left foot condition is not warranted. Service treatment records are silent for complaints or treatment for knee conditions and the Veteran does not contend to have injured his knees in service. The Board has weighed all the evidence of record, including the opinion offered by Dr. Kwiat and finds that the most probative medical evidence does not provide a causal nexus in this case. The Board finds that the opinion from Dr. Kwiat is less persuasive than the opinions provided by the VA examiners. In this regard, the Board notes that the opinions of the VA examiners were based in large part on examinations of the Veteran. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Further, the medical evidence submitted by Dr. Kwiat, provided no rationale for the opinion given. As no rationale was provided, the opinion must be afforded little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008) (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The VA examiner's opinions regarding the nature and etiology and the causation and aggravation of the Veteran's bilateral knee disorder constitute the most probative evidence in this matter. The first clinical evidence of a bilateral knee condition is shown in the December 2008 VA examination report. In the August 2011 VA examination, it was noted that the Veteran's bilateral knee disorder was not observed in service, that reports of the onset of the disorder were several years after service and that the Veteran's condition was less likely than not aggravated by the Veteran's service-connected disabilities, but more likely due to the natural progression of aging. Further, the August 2011 x-ray results show that there had not been any worsening of the Veteran's left knee condition based on a comparison of X-rays from the December 2008 VA examination and that it suggested that this left knee degenerative joint disorder was not related to a worsening foot condition. The opinion was supported by a clinical rationale and not speculative in nature. Nieves-Rodriguez supra; see also Prejean v. West, 13 Vet. App. 44, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Veteran is certainly competent, as a lay person, to report symptoms of which he has personal knowledge, such as knee pain, and the Board finds his account credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as a lay person he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (2012). The specific issue in this case, the relationship between the Veteran's right knee and left knee disabilities and his service-connected disabilities is a complex medical issue and thus is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a lay person, he does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). In the absence of a relative balance of medical evidence or probative lay evidence linking the bilateral knee disorder to service or to a service-connected disability, service connection for a right knee disorder and service connection for a left knee is not warranted. Further, the Board finds that the left knee degenerative joint disease may not be presumed to have been incurred during military service in this case because it was not diagnosed during service or within one year of discharge, and indeed, he acknowledges the onset of his knee problems many years after service. See 38 C.F.R. §§ 3.307, 3.309. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a right knee disorder and service connection for a left knee disorder, because the persuasive medical evidence indicates that these conditions did not have their onset during active service and are not otherwise related to military service. The persuasive medical evidence further indicates that the bilateral knee disorders are neither caused nor aggravated by the service-connected left foot condition. Therefore, service connection for a right knee disorder and service connection for a left knee disorder on a secondary basis is also not warranted. 38 C.F.R. § 3.310. As the preponderance of the evidence is against the claim, service connection for a right knee disorder, to include as secondary to a service-connected left foot condition and service connection for a left knee disorder, to include as secondary to a service-connected left foot condition must be denied. See 38 U.S.C.A. § 5107(b), see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs