Citation Nr: 1316809	
Decision Date: 05/22/13    Archive Date: 05/31/13

DOCKET NO.  08-20 697	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a left knee disorder (originally claimed as left knee chondromalaica), to include as secondary to the service-connected right knee disability. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel
INTRODUCTION

The Veteran served had service with the United States Army Reserves from August to December 1988.  She had active military service in the United States Army from June 1989 to December 1995.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  By that rating action, the RO, in part, denied service connection for chondromalaica of the left knee.  The Veteran appealed this rating action to the Board. 

In April 2012, the Veteran testified before the undersigned at a videoconference conducted via the above-cited RO.  A copy of the hearing transcript has been associated with the claims files.  

In June 2012, the Board remanded the issue on appeal to the RO for additional development.  The requested development has been completed and this matter has returned to the Board for appellate consideration.  


FINDING OF FACT

The preponderance of the evidence of record reflects that the Veteran's left knee disability did not have its onset during military service or within the initial post-service year and is not otherwise etiologically related thereto, nor has it been caused or aggravated by the service-connected right knee disability. 


CONCLUSION OF LAW

The criteria to establish service connection for a left knee disability, to include as secondary to a right knee disability are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  None is found by the Board.  The Veteran was notified via a September 2006 letter of the criteria for establishing service connection on a direct incurrence basis, the evidence required in this regard, and her and VA's respective duties for obtaining evidence.  She also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter predated the initial adjudication by the RO in December 2006.  

With respect to the secondary aspect of the Veteran's service connection claim, the Board notes that the above-referenced VCAA letter failed to address such theory of entitlement.  This being the case, the VCAA notice as relevant to the secondary aspect of the Veteran's claim was defective.  The Board has considered whether this deficiency in the VCAA notice resulted in prejudicial error to the Veteran.  The evidence of record reflects that a reasonable person could have been expected to understand what was needed to support the secondary aspect of the Veteran's claim based on notice that was provided to her during the course of his appeal.  Specifically, a March 2013 Supplemental Statement of the Case (SSOC) informed the Veteran and her representative of 38 C.F.R. § 3.310, the regulation governing secondary service connection.  That regulation provides that service connection may be granted for a disease or injury that resulted from a service-connected disability or was aggravated thereby.  Id.  Thereafter, the Veteran's representative indicated that they had received the above-cited SSOC and did not have any additional evidence to submit in support of the instant appeal.  (See Waiver of 30 Day Waiting Period, signed by the Veteran's representative on "3-21.") 

For the foregoing reasons, the Board finds that VA's failure to provide the Veteran with adequate VCAA notice with respect to the secondary aspect of her claim did not affect the essential fairness of the adjudication of the claim and, therefore, such error is harmless.  Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1).  Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim decided herein.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained the Veteran's service treatment records (STRs) and VA treatment and examination records.  These VA records have been associated with the Veteran's physical claims files, as well as having been uploaded to her Virtual VA electronic file.  The RO has also obtained all identified private treatment records.  

In its June 2012 remand directives, the Board specifically requested that the RO obtain all treatment records from the Audie Murphy VA hospital in San Antonio, Texas, dating from December 1995.  The RO also requested that the Veteran be afforded a VA examination with an opinion to determine the etiology of her claimed left knee disorder.  A January 2013 VA Formal Finding of Unavailability Memorandum reflects that VA treatment records from the San Antonio, VA Medical Center, dated from December 1, 1995 to October 24, 2012 were not available and that all efforts to obtain them had been exhausted.  Notwithstanding the foregoing, treatment reports from the above-cited VAMC, dated from June 1999 to January 2013, have been uploaded to the Veteran's Virtual VA electronic file.  

In addition, in November 2012, VA examined the Veteran to determine the etiology of her claimed left knee disability.  A copy of this examination report has been associated with the claims files.  (See November 2012 VA examination report).  The November 2012 VA examiner has provided answers to the specific medical questions regarding direct service connection asked by the Board in its June 2012 remand directives, such that the requested development has been completed.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

In addition, the Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned Veterans Law Judge in April 2012.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties:  (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the April 2012 hearing, the undersigned Veterans Law Judge identified the single issue on appeal.  Also, information was solicited regarding the nature of her argument and the Veterans Law Judge clarified the evidence necessary to establish entitlement the benefit sought.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

Finally, the RO, on its own accord, sought an independent medical opinion as to the secondary service connection aspect of the Veteran claim in March 2013.  A copy of the IME's March 2013 report is also of record.  

The Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to the claim for service connection for a left knee disorder, to include on a secondary basis.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this 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. 18 (2002).  Therefore, the Board finds that VA has complied with the duty-to-assist requirements.  38 U.S.C.A. § 5103A .

II. Laws and Regulations

Service Connection-general criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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).  

The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

Presumptive Service Connection Criteria

For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  However, this presumption is rebuttable by probative evidence to the contrary.

Secondary Service Connection-Criteria

Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995).  VA has amended 38 C.F.R. § 3.310  to incorporate the holding in Allen with additional requirements that there be medical evidence created prior to the claimed aggravation showing the baseline of the disability prior to aggravation.  38 C.F.R. § 3.310(a)(b). 

III. Analysis

The Veteran seeks service connection for a left knee disability.  She maintains that her left knee disability is the result from having to run 10 miles in boots and tennis shoes and from marching with a backpack during her period of active military service.  (Transcript (T.) at pages (pgs) 3-4)).  She maintains that although she did not seek treatment for her left knee during active military service, a doctor informed her at services separation that it was "messed up."  (T. at page (pg.) 4)). 

The Veteran's service treatment records for her period of active military service are wholly devoid of any subjective complaints or clinical pathology referable to the left knee.  A February 1994 Under 40 Retention examination report reflects that the Veteran's lower extremities were evaluated as "normal."  On an accompanying Report of Medical History, the Veteran indicated that she had had painful or swollen joints (i.e., her right knee would sometime swell).  She denied having had a "Trick" or locked knee.  

The threshold question to be answered is whether the Veteran currently has a left knee disability.  If, but only if that question can be answered in the affirmative, would it be necessary to explore the question of whether it is etiologically linked to her period of active military service or whether it has been caused or aggravated by her service-connected right knee disability.

The Veteran has been diagnosed as having chondromalaica of the left patella.  (See November 2012 VA orthopedic examination report).  Thus, the crux of her claim hinges on whether there is competent evidence showing that her left knee chondromalaica is related to, or had its onset during, her period of active military service, or that it has been caused or aggravated by her service-connected right knee disability.

Post-service VA and private treatment and examination reports reflect that the initial evidence of any chronic left knee disability was in 1999.  Employee health records, dated in June 1999 and prepared by the United States Postal Service, reflect that the Veteran was placed on duty restrictions (e.g., no heavy lifting, pushing or pulling in excess of 30 pounds) due to her bilateral pes anserinus bursitis with patellofemoral syndrome and bilateral patellar tendonitis.  

In the category of competent evidence, there are two (2) VA opinions of record that address the etiology of the Veteran's left knee disability and they are against the claim.  In November 2012, and pursuant to the Board's June 2012 directives, VA examined the Veteran to determine the etiology of her left knee disability.  After a review of the claims files and physical evaluation of the Veteran's left knee, the VA examiner opined that it was less likely than not (less than 50-50 probability) that her diagnosed patellofemoral syndrome of the left knee was related to her period of military service.  The VA examiner reasoned that there was no mention of any left knee problems in her service treatment records or in 1996, when VA initially examined her after service discharge.  (See April 1996 VA orthopedic examination report).  As noted by the November 2012 VA examiner, at the 1996 VA examination, the Veteran provided a history of having injured her right (italics added for emphasis) knee during service on two (2) or three (3) occasions.  Id.  The November 2012 VA physician correctly noted that the first post-service evidence of any left knee chondromalaica was in 1999, when the Veteran was seen for an employment examination.  Overall, the November 2012 VA examiner opined that in order to grant service connection in the absence of any left problems or complaints during active military service or until 1999, would be based entirely on the Veteran's history and in the absence of any collaborating evidence.  The November 2012 VA examiner determined that the Veteran's left knee chondromalaica, which was bilateral, was an age-related problem and was to be expected in an individual of her age (i.e., 43 at the time of the November 2012 VA examination).  The VA examiner concluded that it would be mere speculation to state whether or not signs of chondromalaica would have been initially shown during an in-service examination.  (See November 2012 VA examination report).  

In March 2013, the RO, on its own accord, sought an independent medical opinion (IME) on the question of secondary service connection.  After an exhaustive review of the Veteran's clinical record, to include her service and post-service treatment records, and medical literature, the March 2013 examiner concurred with the November 2012 VA examiner's conclusion that it was less likely as not that the Veteran's left knee chondromalaica had been caused by her period of active military service.  The March 2013 examiner agreed with the November 2012 VA examiner in finding that the Veteran's left knee chondromalaica was a consequence of the normal aging process, as evidenced by her minimal clinical findings of joint swelling at the November 2012 examination, as well as her acquired biomechanical misalignment.  The March 2013 examiner also concluded that it was less likely as not that the Veteran's left knee was proximately due to or aggravated by the service-connected right knee disability.  The March 2013 VA exminer reasoned that the two conditions were independent events and were mutually exclusive of one another, despite having occurred at similar times.  (See March 2013 IME opinion).

The Board finds the above-cited VA and IME medical opinions to be highly probative evidence.  The opinions were based on a review of the Veteran's claims files and were supported by a full rationale.  See Nieves-Rodriquez v. Nicholson, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight); see also Gardin v. Shinseki, 2010 WL 2898320 (Fed.Cir.) (July 16, 2010) (observing that in accordance with Nieves- Rodriguez, the Board is prohibited from discounting a private physician's report merely because the opining physician did not review the Veteran's medical service record).  There is no other medical opinion, private or VA that refutes the above-cited VA and IME examiners' conclusions and that is supportive of the Veteran's claim for a left disability, to include as secondary to the service-connected right knee disability. 

Furthermore, because there is no evidence of arthritis of the left knee within a year of the Veteran's separation from military service in December 1995, service connection for this disability on a presumptive basis is also not warranted.  See 38 C.F.R. §§ 3.307; 3.309.

The Veteran has not contended that she has experienced left knee problems from active service through the present time.  In fact, in statements, received by the RO in October 2003, the Veteran, her husband and daughter, reported that she had experienced left knee pain and swelling since January 2006, which is over a decade after she was discharged from her period of active military service in December 1995.  Her STRs include no reference to complaints of any left knee problems.  She denied having had a "Trick" or locked knee on a Report of Medical History that accompanied her February 1994 Under 40 Retention examination.  As noted previously herein, the initial post-service evidence of any left knee disability was in June 1999, four years after service discharge in December 1995.  The combination of an absence of any left knee problems during her period of active military service, and an absence of any medical records of a diagnosis or treatment of any left knee disability until 1999, is probative evidence against the claim.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weight heavily against the claim).  

The Board notes that the Veteran, as well as husband and daughter, are competent to describe her left knee symptoms, or observations thereof, since she was discharged from military service.  However, neither the Veteran nor her spouse has been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation of her current left knee chondromalaica.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  No competent professional advances the theory that the Veteran's left knee chondromalaica had its onset during military service or that it has been caused or aggravated by her service-connected right knee disability.  There is no other competent or probative evidence of record in support of the claim.  

In conclusion, as there is no notation of any left knee arthritis at service separation in December 1995, and there is no nexus opinion in favor of the Veteran's claim, all of the elements necessary to warrant a grant of service connection on either a direct or a secondary basis are not shown.  Consequently, service connection for a left knee disability on either a direct or a secondary basis must be denied. 


ORDER

Service connection for a left knee disability, to include as secondary to service-connected right knee disability is denied. 



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs