Citation Nr: 1316872 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-14 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for degenerative arthritic changes of the knees. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from December 1973 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Atlanta RO. A transcript of the hearing has been associated with the claims file and has been reviewed. In February 2013, VA obtained an advisory opinion from the Veterans Health Administration (VHA). See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901 (2012). The resulting VHA opinion was received by the Board the following month. In April 2013, the Veteran submitted additional argument; however, no additional evidence was received. Accordingly, the Board will address the merits of the claim. FINDING OF FACT Clear and unmistakable evidence shows that the Veteran had a bilateral knee condition that preexisted his period of active duty that did not undergo an increase in severity during such service that could be identified as an advancement beyond normal progression. CONCLUSION OF LAW Degenerative arthritic changes of the knees were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the issue on appeal, the Board notes that 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 his 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); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in December 2006 of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ/RO in September 2007, nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA has also satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports are of record. His Virtual VA electronic file has been reviewed and no additional relevant evidence has been associated therewith. He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Veteran has submitted personal statements, lay statements from others, representative argument and provided testimony at the 2012 hearing. In addition, a VA examination was obtained in February 2007. The Board also obtained a VHA opinion in March 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is true that the February 2007 examination report was deficient because it lacked an adequate medical opinion concerning whether the Veteran's current bilateral knee arthritis/degenerative changes are attributable directly to service, including as a pre-existing condition that was aggravated by his active military service. However, as discussed immediately below, that deficiency was cured by obtaining a VHA opinion. The VHA opinion is found to be adequate for decision-making purposes, as it included a full review of the Veteran's claims file, is supported by sufficient detail, and refers to specific documents and medical history, as well as the Veteran's statements regarding what he believes was the onset of his bilateral knee disability, to support the conclusions reached based on specific questions presented by the Board. Copies of this opinion were sent to the Veteran and his representative in April 2013. They were both provided with a 60-day period to review this opinion and provide additional evidence. Additional argument was received from the Veteran in April 2013 without any additional evidence. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue being decided herein has been met. 38 C.F.R. § 3.159(c)(4) (2012). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); & Quartuccio v. Principi, supra. Law and Analysis The Veteran asserts that he should be entitled to service connection for degenerative changes of both knees. He claims that on active duty he worked as a crew chief on the B-52 aircraft, carried a heavy toolbox around the flight line all day, crawled around on hard cold metal, climbed on top of the wings of the planes, jumped down two to three feet from the wheel well of the plane and also did a lot of bending on his knees to check under the aircraft. See Notice of Disagreement, received in December 2007. He also claims he had a bad fall on his knees from the "cartpit" to the second floor which was the navigation floor. See VA Form 21-4142 (Authorization and Consent to Release Information to VA) dated in January 2007 and February 2007 VA examination report. He claims these in-service activities caused wear and tear on his knees. He also claims that he had corrective surgery to his knees prior to active service, but that during active service he was not given a profile or job alterations to help support his knees. See July 2012 Hearing Transcript (Tr.) at page 3. The Veteran basically contends that his bilateral knee condition was aggravated by his active military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. Service connection for certain specified chronic diseases, such as arthritis, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Further, the Board notes that the evidence of record raises a question of whether the Veteran's bilateral knee arthritis/degenerative changes are attributable to a condition that preexisted his military service. See Service Treatment Records dated in May 1977. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). As noted, under 38 U.S.C.A. § 1111, the presumption of soundness does not attach on conditions recorded on entrance examination reports or may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. If the presumption of soundness does not attach or has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306. However, in a case such as this, when no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (emphasis added). see also VAOPGCPREC 3-03 (July 16, 2003) (the provisions of 38 C.F.R. § 3.306(b) providing that aggravation may not be conceded unless the preexisting condition increased in severity during service, are not inconsistent with 38 U.S.C.A. § 1111. Section 3.306(b) properly implements 38 U.S.C.A. § 1153, which provides that a preexisting injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is permanently worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Turning to the evidence of record, service treatment records show that the Veteran's enlistment examination in November 1973 was essentially negative. On a separation examination, dated May 2, 1977, clinical evaluation of the lower extremities was abnormal due to a 4 cm. surgical scar on the left knee, noted to be "WHNS" (well-healed, non-symptomatic). The accompanying Report of Medical History shows he specifically denied having or having had a "trick" or locked knee or swollen/painful joints. An entry dated May 17, 1977 noted that the Veteran was status post knee surgery (corrective for bowlegs) in 1972. On that date, he presented with an 18-month history of knee problems, and reported that his knees pop with bending, and that there was associated pain. He denied swelling and reported his right knee was more tender. Objective examination showed no laxity of the joints, but the Veteran had surgical scars on the lateral aspects bilaterally, and there was point tenderness and swelling on the right proximal tibial tuberosity. Deep tendon reflexes were symmetrical, and there was possible crepitance on patellar motion. The assessment was bilateral chondromalacia. An X-ray report taken at that time showed the radiologist indicated findings of satisfactory post-operative appearance of the knees, and that the left knee joint space may be slightly narrowed when compared to the right, but there was no evidence of a recent fracture. It was also noted that the left tibiofibular joint appeared to be fused, perhaps on a post-operative basis. A physical profile report dated in May 17, 1977 showed that previously, the Veteran's physical profile (PUHLES) was all 1's, indicating a high level of medical fitness. However the profile was revised to a 2 in the "L" or lower extremity category. The defect was noted to be bilateral chondromalacia, and the Veteran was to refrain from activities requiring bending of the knees. These restrictions were temporary and were to be released in July 1977. In this case, medical records prior to service are not available for review so the exact nature of any preexisting bilateral knee disorder is uncertain. Further, the Board finds that based on the in-service clinical symptoms and radiographic findings, as well as the Veteran's own admission of corrective knee in 1972 constitutes evidence of a pre-service bilateral knee condition that existed prior to his entry onto active duty in December 1973. The weight of the evidence, clearly and unmistakably confirms that the Veteran had a pre-existing knee condition prior to his entrance into active duty service in December 1973. Thus, the presumption of soundness at entrance does not attach. Verdon v. Brown, 8 Vet. App. 529 (1996). Because the Veteran's service treatment records clearly establish the pre-service existence of a bilateral knee condition, the Board needs to determine next whether the Veteran's pre-existing condition was aggravated during active duty. Here, the service treatment records do not reveal permanent aggravation of the Veteran's preexisting bilateral knee condition. Although he served on active duty for approximately four years, there is limited evidence available with which to ascertain whether a measurable worsening occurred. There is no question that he was treated for bilateral knee pain during service and placed on temporary physical profile. However, this single episode does not establish a permanent increase in the disability, as it does not indicate any pathological changes to the Veteran's pre-existing bilateral knee disorder or that such treatment was reflective of more than temporary or intermittent flare-ups. In fact, it appears that his placement on a temporary limited physical profile was a preventative measure to assure that his condition did not worsen. Moreover, at separation in May 1977, a clinical evaluation did not note any abnormalities of either knee and no disqualifying defects were reported. The Board notes that this conclusion is further supported by the post-service evidence, which is devoid of any clinical records showing that the Veteran received medical treatment for his knees immediately after service or for many years thereafter. There are essentially no post service records until a September 2006 X-ray report from Southwood Medical Center, which, revealed postoperative changes in the knees, mild to moderate osteoarthritic changes bilaterally, and prominent spurs at the anterior aspects of both proximal tibia could be evidence of old trauma. Also of record is a VA examination in February 2007. At that time it was noted that the Veteran reported suffering from osteoarthritis of the bilateral knees for 20 years, and that he attributed this condition to an injury that occurred while he was working on a aircraft and fell out "07 the cartpit on to [his] knees and this caused [him] to go light duty for 30 days". He reported suffering from constant knee pain, since for the last 20 years. An X-ray taken at that time revealed moderately advanced DJD (degenerative joint disease) of both knees and patellae. The Board further notes that there are no other post-service treatment records addressing the Veteran's knee condition because he has not presented any evidence of treatment subsequent to service. As a result, there is no evidence of a continuity of symptomatology for his knee pain, which strengthens the conclusion that his pre-service hearing loss was essentially unaffected by service. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Here, the lack of post-service evidence tends to confirm that the Veteran's preexisting bilateral knee condition manifested only temporary or intermittent flare-ups during service, without a chronic worsening of the underlying condition. For further medical comment on this issue, the Board requested a VHA opinion in February 2013 from an orthopedist who reviewed the entire medical record in detail, including but not limited to the evidence summarized above and relevant orthopedic literature. This included noting the Veteran's history of "bow legs", which required corrective surgery prior to service and the in-service X-ray findings highly suggestive that the pre-service knee condition had already begun down the path of osteoarthritis. This also included noting that during service the Veteran was diagnosed with chondromalacia (a precursor to osteoarthritis) and placed on temporary activity restrictions, which were lifted about a month prior to the Veteran's completion of active duty in August 1977. The examiner referred to the Veteran's claimed allegation of a bad fall, which caused him to go on light duty for 30 days, but determined that this incident was not corroborated by in-service medical records. The VHA orthopedist essentially concluded that it was less likely than not that the Veteran's bilateral knee condition was caused or permanently aggravated during active service. Instead it was more likely than not that the Veteran's pre-service condition, bowlegs, is the primary etiology of his bilateral knee osteoarthritis. In discussing the rationale of the opinion, the VHA orthopedist indicated that as there were no pre-service medical records available for review, there must be some speculation as to the diagnosis and procedure that was performed to correct the Veteran's bowlegs prior to service. He noted that there were two diagnoses that would result in bowlegs, one being genu varum and the other Blount's Disease. Both conditions result in a coronal malalignment in the lower extremity, and are well known to result in meniscal injures and progressive cartilage wear which will inevitably develop into more severe medial compartment osteoarthritis. The surgery commonly performed to treatment genu varum and Blount's Disease is a high tibial valgus osteotomy, which is an attempt to correct the coronal malalignment and slow the progression of osteoarthritis. In spite of the aforementioned surgical procedure, many patients with coronal malalignment will develop knee osteoarthritis at a young age. In fact, a retrospective review study showed that 27 percent of patients at 5 years, 49 percent of patients at 10 years, 61 percent at 15 years, and 70 percent at 20 years after high tibial osteotomy had required conversion of the high tibial osteopathy to a total knee replacement. The VHA orthopedist concludes that to claim that the Veteran's 3-1/2 years of manual labor while on active duty caused or permanently aggravated his knees would be speculative. There is no medical evidence to support his claims. Additionally there was no evidence of fracture or acute injury on the in-service radiographs from 1977 to support the Veteran's claim of post-traumatic knee arthritis. As supported by orthopedic literature a significant majority of patients that undergo corrective surgery for coronal malalignment will progress to knee arthritis, which will require knee arthroplasty. In summary, it would be purely speculative to claim his in-service activities or alleged knee injury caused or permanently aggravated his current knee osteoarthritis and it is more likely than not that his pre-service knee condition is the etiology of his current knee osteoarthritis. The Board finds this VHA opinion highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. The VHA orthopedist considered the Veteran's relevant medical history and discussed the Veteran's current symptoms in the context of that history. As a result, he was able to address fully the salient question as to the origin of the Veteran's current knee degenerative changes/osteoarthritis and its relationship to military service. Moreover, the claims folder contains no medical evidence refuting the March 2013 VHA opinion. Accordingly, the Board finds that the evidence clearly and unmistakably establishes that the Veteran's preexisting knee condition was not aggravated beyond its natural progression during active duty. In other words, the Veteran's service treatment records, particularly the physical profile do not establish a permanent increase in the Veteran's knee condition. Rather, by all accounts, the Veteran experienced a temporary increase in symptoms during service that later resolved after service. The fact that his knees were symptomatic in service, in and of itself, does not establish aggravation. Jensen and Hunt, supra. Thus, for the reasons explained above, the Veteran's knee condition clearly and unmistakably pre-existed his period of military service and clearly and unmistakably was not aggravated by that service. In reaching this conclusion, the Board has not overlooked the Veteran's contentions or his statements to healthcare providers regarding his longstanding history of bilateral knee problems. His primary assertion is that his in-service activities caused wear and tear on his knees. The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316. 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Federal Circuit Court also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Thus, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (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")). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for musculoskeletal disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Although the Board recognizes the sincerity of the arguments advanced by the Veteran, his contentions as to the etiology/onset of his claimed knee disorder are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. That is to say, degenerative arthritic changes and/or osteoarthritis are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment on their etiology. So while the Veteran is competent to say he has experienced certain symptoms, even symptoms that often may be associated with an eventual diagnosis of degenerative arthritic changes and/or osteoarthritis, he is not in turn competent to ascribe these symptoms to disability related to his military service. In this case the Veteran's opinion is far outweighed by the more thoroughly explained and detailed opinion from the VHA medical professional. Jandreau supra & Buchanan supra. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for degenerative changes of both knees is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs