Citation Nr: 1316945 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-27 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a bilateral hip disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. These matters were previously before the Board in February 2011, at which time the Board remanded the case for additional development of the medical evidence of record. The Board remanded the claim to provide the Veteran with the additional opportunity to identify relevant treatment records and to provide the Veteran with an examination of his left knee. The Board finds that there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. The weight of the competent and credible evidence of record does not support a finding that a relationship exists between a left knee disability and service. 2. The weight of the competent and credible evidence of record does not support a finding that a relationship exists between a back disability and service or any service-connected disability. 3. The weight of the competent and credible evidence of record does not support a finding that a relationship exists between a bilateral hip disability and service or any service-connected disability. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in, or aggravated by, active duty military service, and it may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309(a) (2012). 2. A back disability was not incurred in or aggravated by service and is not the result of, nor is it aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309(a), 3.310 (2012). 3. A bilateral hip disability was not incurred in or aggravated by service and is not the result of, nor is it aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309(a), 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist VA has a duty to notify a veteran of the information and evidence necessary to substantiate a claims for VA benefits and to assist Veterans in development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). When VA receives a complete or substantially complete application for benefits, it must notify the veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the veteran is expected to provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2011); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Prior to the initial adjudication of the Veteran's claim, a letter dated November 2006 was sent to the Veteran in accordance with the duty to notify. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the November 2006 letter informed the Veteran of information and evidence necessary to substantiate the claims, information and evidence that VA would seek to obtain, information and evidence that the Veteran was expected to provide, and information regarding the process by which initial disability ratings and effective dates are established. The Board finds that the notice requirements have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records, post-service private medical records, and records from the Social Security Administration have been obtained, to the extent available. 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 (2007). The Veteran was provided with an examination of his left knee in June 2011. The examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board finds that examination adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). With regard to the Veteran's claims for service connection for a back disability and a bilateral hip disability, the Board notes that the Veteran has consistently claimed that those conditions are secondary to his left knee condition. This decision finds that service connection for a left knee disability is not warranted. Accordingly, an examination addressing the issue of secondary service connection for the Veteran's back and bilateral hip condition is not required because the Veteran has no service-connected disabilities. 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In December 2007, the Veteran presented testimony before a Decision Review Officer, and a transcript of that hearing is of record. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. The Board finds that there is no indication in the record that any additional relevant evidence is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran contends that his left knee disability is directly related to his active duty service. The Veteran contends that his back disability and bilateral hip disability are secondary to his left knee disability. In general, service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among a chronic disease. 38 C.F.R. § 3.309 (2012). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for a claimed disability on a secondary basis, there must be medical evidence of a current disability, a service-connected disability, and medical evidence of a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). With respect to medical evidence of a current disability, the June 2011 examiner indicated that the Veteran had degenerative osteoarthritic changes of the knee joint. A November 2002 private treatment record indicates that the Veteran had severe degenerative changes of the spine. December 2002 imaging studies indicate that the Veteran may have had a calcific tendinitis in the iliac bones. Accordingly, the evidence shows current disabilities. With respect to the presence a service-connected disability, the Veteran claims that his back and bilateral hip disabilities are secondarily related to his left knee disability. However, this decision denies the Veteran's claim for service connection for a left knee disability. The Veteran otherwise has no service-connected disabilities. Therefore, the Veteran's claims for service connection for back and bilateral hip disabilities on a secondary basis fail on the basis that there is no service-connected disability. With regard to an in-service disease or injury, a September 1965 service treatment record indicates that the Veteran slipped in the hallway and injured his left knee. Therefore, there is an inservice injury of the left knee. However, the service medical records show no complaint or treatment for the hips or back.. Regarding medical evidence of nexus, the Veteran was provided with a VA examination of his left knee in June 2011. The examiner reviewed records relating to the Veteran's in-service left knee injury. The examiner noted that a September 1965 record documented an abduction-type injury with pain along the medial femoral condyle. X-ray examinations from August 1965, before the in-service knee injury occurred, and November 1965, after the in-service knee injury occurred, were negative for significant bone or joint abnormality. The examiner observed that the Veteran began receiving treatment at a VA facility in 2006. The examiner concluded that the Veteran's current left knee disability was less likely than not related to the Veteran's in-service injury. The examiner noted that x-ray examinations from 1965 and 2002 revealed no degenerative changes to the left knee. The examiner opined that there was no evidence that the Veteran received continuing treatment for a knee disability after active service, and the examiner indicated that this absence of treatment suggested that the Veteran's in-service condition was acute, transient, and responded to proper treatment given. The Board finds that an examination is not needed to seek a nexus opinion regarding whether hip and back disabilities are related to service because the evidence does not show any event, disease, or injury of the back or hips in service and the Veteran does not claim those disabilities are directly related to service. 38 C.F.R. § 3.159(c)(4) (2012). There is no competent evidence of record that shows that any current back or hip disability is directly related to service. To the extent that the Veteran believes that his left knee disability is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with examinations based on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As to the etiology of a left knee disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's knee disability is related to his service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's condition and his military service, greater probative weight than the lay opinions. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his left knee symptoms, and it finds that he has not done so. 38 C.F.R. § 3.309 (2012). There is no competent medical evidence indicating that the Veteran was treated for left knee pain until nearly 30 years after separation from service in 1968. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Thus, while the Board has considered the lay contentions of the Veteran and others that the Veteran experienced left knee problems after military service, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since active duty. Thus, a medical nexus is not shown by continuity of symptomatology with regard to the Veteran's claimed left knee disability. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claims. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's left knee disability, hip disability, and back disability are not related to his active service. The Veteran's back and bilateral hip disability cannot, therefore, be secondarily service-connected to the Veteran's left knee disability, as service connection has not been established for a left knee disability. Accordingly, as the preponderance of the evidence is against the claims for service connection, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee disability is denied. Service connection for a back disability is denied. Service connection for a bilateral hip disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs