Citation Nr: 1316644 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 04-11 913A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee traumatic arthritis. 2. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected left knee traumatic arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from September 1967 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2001 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied the Veteran's claims for service connection for a right knee disability and a right hip condition. A review of the Virtual VA paperless claims processing system does not reveal documents pertinent to the claims on appeal. The Board remanded the instant claims to the Appeals Management Center (AMC) in June 2007, June 2009, July 2011 and November 2012. In March 2013, the Veteran indicated that he had no further evidence to submit and requested that the Board consider his case as soon as possible. In April 2013, subsequent to the issuance of the February 2013 supplemental statement of the case (SSOC), the Veteran submitted additional evidence in support of his claims. The Veteran's representative waived RO consideration of any evidence submitted after the issuance of the February 2013 SSOC in a March 2013 response. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that the Veteran currently has a right knee disorder, namely right knee degenerative joint disease, which is presumed to have been incurred in service as such arthritis manifested to a compensable degree within one year of service discharge. 2. The preponderance of the evidence is against a finding that the Veteran currently has a right hip disorder as a result of his active duty service and/or service-connected disability or that arthritis manifested to a compensable degree within year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder, specifically right knee degenerative arthritis, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309, 4.71a, 5003 (2012). 2. The criteria for service connection for a right hip disorder, to include as secondary to service-connected left knee traumatic arthritis, have not been met. 38 U.S.C.A. §§ 1110, 5107 (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. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court of Appeals for Veterans Claims (Court) has held that VA 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. With respect to the Veteran's claim for service connection for a right knee disorder, given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). A July 2007 notice letter fully satisfied the duty to notify provisions as to the Veteran's claim for service connection for a right hip disorder on a direct basis. In addition, an October 2009 letter provided such notice with regards to this claim on a secondary basis. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. While these letters were not provided to the Veteran until after the initial adjudication of his claim, it was subsequently readjudicated in a July 2012 SSOC. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). As the Board has concluded that the preponderance of the evidence is against the claim for service connection for a right hip disorder, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the Veteran has not alleged prejudice with regard to any notice deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs), service personnel records (SPRs), VA outpatient treatment records, various private treatment records and Social Security Administration (SSA) records are contained in the claims file. An April 2008 response from the VA Medical Center (VAMC) in Gainesville indicated that they did not have any retrievable records related to the Veteran. The Veteran was notified of the unavailability of these records in January 2009. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regards to the Veteran's claim for service connection, the record indicates that VA obtained medical opinions in July 2012 and December 2012. These opinions involved a review of the claims file and reflected opinions that were supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. The Board observes that, as discussed below, the Board grants a claim of service connection for right knee disability. The Veteran has not alleged, and the evidence does not indicate, that the right hip disorder may be proximately due to the right knee disorder. The Veteran primarily alleges that a falling injury caused by left knee disability resulted in the right hip arthritis. As discussed below, the Veteran's report of a falling injury due to service-connected disability has been deemed true and any extent that the right knee may have contributed to this fall would make no material difference to the opinions obtained. Additionally, the VA examiner opinions make it clear that there is no causal relationship between a knee disorder causing right hip arthritis, and that the Veteran's right hip arthritis is attributable to natural causes. The evidence of record does not indicate any relationship between the right knee disability and the right hip disability. As such, the Board finds that additional medical opinion considering the right knee disorder is not warranted. Additionally, the Board finds there has been substantial compliance with its June 2007, June 2009, July 2011 and November 2012 remand directives. The Board notes that the Court has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC provided the Veteran proper notice, obtained specific private treatment records, obtained his updated VA treatment records, obtained his service personnel records and obtained his SSA records. In addition, the AMC scheduled the Veteran for a VA orthopedic examination (which he attended) and obtained an examination report. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal, and the Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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 profession." 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.") 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"). 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). Certain chronic disabilities such as arthritis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected condition. See 38 C.F.R. § 3.310. Service connection is possible when a service connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service connected disability. 38 C.F.R. § 3.310(b). In this case, the Veteran applied for service connection prior to the effective date of the amendment. 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); 38 C.F.R. § 3.102. A. Right Knee The Veteran contends that his service-connected left knee disorder caused his right knee disorder. Specifically, he has alleged that instability related to his left knee disorder caused a fall and resulted in his right knee disorder. An August 1967 service entrance examination was negative for any relevant abnormalities and the Veteran denied a "trick" or locked knee or arthritis an accompanying Report of Medical History (RMH). The Veteran complained of a sore right leg in October 1967 and an infection was noted. A July 1970 service discharge examination found the Veteran's lower extremities to be normal and was otherwise negative for any relevant abnormalities. In addition, the Veteran reported that he was in good health except for trouble with his left knee. A September 1970 Statement of Medical Condition completed by the Veteran indicated that his medical conditions had changed due to knee trouble; he did not specify which knee he was referring to. A December 1970 VA examination found instability in the right knee. An accompanying right knee X-ray revealed narrowing of the articular space that was less marked on the contralateral knee as well as narrowing of the retro-patellar space. Subsequent VA and private treatment notes reflect the Veteran's complaints of right knee symptoms, including pain and swelling. A diagnosis of right knee degenerative joint disease was noted in a July 2011 VA examination. The Veteran has a current disability as he has been diagnosed as suffering from right knee degenerative joint disease, a form of arthritis. The Board notes that for veterans who served more than 90 days during a war period, arthritis is presumed to have been incurred in service if it manifests to a compensable degree within one year of separation of service. Here, the Veteran served for more than 90 days during a war period, namely the Vietnam era. See 38 C.F.R. § 3.2(f). A December 1970 VA right knee X-ray, taken approximately five months after service discharge, revealed narrowing of the articular and retro-patella spaces. Such findings are consistent with arthritis. See Hayes v. Brown, 9 Vet. App. 67, 71 (1996) (osteoarthritis is non-inflammatory degenerative joint disease characterized by degeneration of cartilage and bone with changes in the membranes); see also Merck Manuals Online Medical Library, Musculoskeletal and Connective Tissue Disorders, Joint Disorders, Osteoarthritis (Online Ed.). A compensable rating for degenerative arthritis requires that such a disability be established by X-ray. See 38 C.F.R. § 4.71a, 5003. The Board notes that although various VA examiners have provided negative etiological opinions as to the relationship between the Veteran's right knee disorder and service and/or his service-connected left knee disorder, no such examiner has addressed the December 1970 X-ray findings. In addition, no examiner has considered whether presumptive service connection was warranted due to the manifestation of arthritis within one year of service discharge. No other evidence rebutting this presumption has been submitted. As the evidence is at least in equipoise, and resolving all doubt in the Veteran's favor, entitlement to service connection for a right knee disorder, namely right knee degenerative joint disease, is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Right Hip The Veteran contends that his service-connected left knee disorder caused his right hip disorder. Specifically, he has alleged that instability related to his left knee disorder caused a fall and resulted in his right hip disorder. The Board notes that although the Veteran has claimed secondary service connection only, the AOJ considered service connection on both a direct and secondary basis. An August 1967 service entrance examination was negative for any relevant abnormalities and the Veteran denied arthritis an accompanying RMH. A July 1970 service discharge examination was also negative for any relevant abnormalities. In addition, the Veteran reported that he was in good health except for trouble with his left knee. A September 1970 Statement of Medical Condition completed by the Veteran indicated that his medical conditions had changed due to knee trouble. The remaining service treatment records were negative for complaints, treatments or diagnoses related to any right hip disorder. VA examinations conducted in November 1970, December 1970, January 1976, November 1978 and August 1980 was negative for complaints, treatments or diagnoses related to the right hip. An October 1989 VA treatment note reflected the Veteran's complaints of right hip pain and tenderness for the past 10 to 11 years that began after a fall. An accompanying right hip X-ray revealed early degenerative changes. A January 1990 VA treatment note contained an assessment of right hip degenerative joint disease. A June 1990 VA treatment note reflected the Veteran's complaints of right hip pain for the past 10 to 15 years and contained an assessment of bursitis. A May 1991 VA examination noted the Veteran's reports of hip pain that had gotten progressively worse since its onset 10 years ago. In a September 1999 statement, the Veteran wrote that he fell while walking down the stairs in 1981, injuring his hip, and that pain did not manifest until about one year later. A November 1999 opinion from Dr. L. B., a private orthopedist, indicated that the Veteran's right hip arthritic changes would be related to his fall in 1980 or 1981 if X-rays were normal at that time. However, if X-rays at that time showed arthritis, this would represent only an aggravation of a preexisting condition in the provider's opinion. In a January 2003 statement, the Veteran's friend wrote that he witnessed the Veteran falling down the stairs and landing on the floor below in 1980 or 1981. At the time of the fall, the Veteran reported that his left knee had given way. The author learned that the Veteran was having problems with his right hip as a result of this incident about one year after witnessing the fall. A July 2011 VA orthopedic examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's right hip disorder was proximately due to or the result of his service-connected condition. The examiner noted that the Veteran's right hip pain and subsequent replacement could simply be the result of degenerative changes to his hip as he did not have hip pain until approximately 20 years after his left knee surgery. The examiner further opined that degenerative joint disease was very common in the normal population and the Veteran appears to be genetically prone to degenerative joint disease in his joints as he had more than one joint involved. A July 2012 VA orthopedic examiner noted that the evidence supporting the contention that arthritis in one joint precipitated arthritis in another joint remained tenuous at best. The evidence best supported the contention that an antalgic gait caused by an affected arthritic hip resulted in the opposite side knee experiencing increased dynamic loading, which could accelerate degenerative arthritis. However, the examiner noted that such an antalgic gait would worsen the service-connected degenerative joint disease in the left knee rather than degenerative joint disease in the right knee. The VA examiner attached two medical treatise articles in support of his opinion, including evidence that cykoytines, mechanical trauma and altered genetics could play a role in osteoarthritis. A December 2012 VA Disability Benefits Questionnaire (DBQ) examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's right hip degenerative joint disease requiring total hip arthroplasty was proximately due to or the result of his service-connected condition. The examiner reasoned that this disability was likely secondary to a genetic predisposition and repetitive hip use during the Veteran's life and less likely due to the falling injury described by the Veteran. The examiner further opined that it was highly unlikely that the Veteran's right hip condition was due to his status-post left medial knee meniscectomy as he was aware of no medical literature which would support such a claim. Moreover, the examiner opined that a status-post left medial knee meniscectomy was not likely to contribute to falls or the onset of right hip degenerative joint disease. The Veteran has a current disability as he has been diagnosed with right hip degenerative joint disease requiring total hip arthroplasty. The Board finds the VA examination reports dated in July 2011 and December 2012 to be highly probative evidence as to whether the Veteran's right hip disorder was related to his service and/or his service-connected left knee disorder. As noted, these opinions were based on a review of the record, consideration of the Veteran's own statements as to his symptoms and history, and considered the results of physical examination and diagnostic studies. These opinions were also supported by a rationale. In addition, the July 2011 VA examination report detailed the research regarding whether arthritis in one joint precipitated arthritis in another joint. On the other hand, the record contains a November 1999 opinion from Dr. L. B., which stated that the Veteran's right hip arthritic changes "could be" related to his fall in 1980 or 1981. The probative value of this opinion is limited. First, the opinion is couched in speculative terms which cannot support a grant of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). Second, the examiner offers little rationale based upon actual findings then of record to support the speculative conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that a medical opinion does not hold probative value when it fails to provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability). Third, the opinion is greatly outweighed by the VA medical opinions which are based upon an accurate review of the actual clinical findings and consideration of medical treatise materials. The Veteran was discharged from service in 1970 and the clinical evidence does not reflect complaints of symptoms related to his right hip until more than 19 years later. This intervening lapse of so many years between his separation from service and the first documented manifestation of this claimed disorder tends to weigh against a direct service connection theory. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no evidence or argument that right hip arthritis manifested within the first postservice year. The Board has considered the Veteran's own statements regarding the nature and etiology his right hip disorder. The Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his symptoms. See, e.g., Layno, supra. The Veteran has not described any right hip injury in service or persistent or recurrent right hip symptoms since service. Rather, the Veteran has attributed the onset of his right hip symptoms to a falling injury caused by his service-connected left knee disability. His testimony is corroborated by a friend statement, and has been accepted as true. However, the opinion by the Veteran regarding the etiology of his right hip arthritis involves an issue that requiring medical knowledge which would appear to be beyond his competence. In any event, the Veteran's contentions as to the relationship to his service-connected left knee disorder are outweighed by the opinion of the VA examiners, who possess greater training and expertise than the Veteran in evaluating orthopedic disorders. These opinions are also greatly outweighed by an information from the Veteran which may be a reiteration of what physician's have told him, as the Board cannot determine from his statements the evidence and reasoning of these physicians to weigh against the VA examiner opinions. The Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert, supra. Thus, the Veteran's claim of entitlement to service connection for a right hip disorder is denied. ORDER Service connection for a right knee disorder, namely right knee degenerative joint disease, is granted. Service connection for a right hip disorder, to include as secondary to service-connected left knee traumatic arthritis, is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs