Citation Nr: 1317207 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-27 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri, which denied the claim. The RO in New York, New York, currently has jurisdiction of the claim. When this case was previously before the Board in November 2011, June 2012 and February 2013, it was remanded for additional development. The case is now before the Board for final appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's right knee disability is related to active duty, or that it was proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by active service, may not be presumed to have been so incurred or aggravated, and was not incurred or aggravated as a result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in an April 2008 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains VA medical records, private medical records, and the transcript of an April 2011 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The record contains an April 1957 service record showing that the Veteran was placed on physical profile due to weak left knee due to spinal injury incurred in a fall. The Veteran's complete service treatment records are unavailable. The Board's June 2012 remand noted that an inservice right knee injury was therefore conceded. Thus, in the present decision the Board will concede that the Veteran injured his right knee during active duty. VA has attempted to obtain the Veteran's remaining service treatment records. In February 2003, the National Personnel Records Center informed VA that the Veteran's record was fire-related and there were no service treatment records. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran failed to complete and return a VA Form 21-4142. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA conducted examinations with respect to the Veteran's right knee in December 2011 and June 2012, and obtained a medical opinion in March 2013. To that end, 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). The Board finds that the VA medical opinions obtained in this case are more than adequate, as they reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for the opinions offered. They consider all of the pertinent evidence of record, and the statements of the Veteran. Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he has a right knee disability that was caused by a 20-foot fall during active duty, or was caused or aggravated by his service-connected left knee disabilities (mild degenerative changes and instability). In April 2008 correspondence, a friend of the Veteran stated that he had known the Veteran for 40 years. The Veteran had complained about his knee injury from the day they met. The Veteran explained it as an old army injury. The Veteran said that he had wanted to become a police officer but could never pass the physical. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for a right knee disability, to include as secondary to service-connected left knee disabilities. The Veteran's complete service treatment records are not available. An April 1957 service record shows that the Veteran was placed on physical profile due to weak left knee due to spinal injury incurred in a fall. The Board concedes that the Veteran injured his right knee during active duty. The evidence fails to show that the Veteran was diagnosed with arthritis of the right knee within one year following his separation from service. Thus, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Degenerative changes of the right knee were not shown until decades after the Veteran's separation. A May 2006 private medical record provides that the Veteran complained of right knee pain that had bothered him "for about 50 years" but had been intermittent recently. X-rays of both knees showed only mild degenerative change. The examiner stated that he felt that the Veteran had a degenerative meniscal tear of the right knee. The notation of a 50-year history in this report does not support the Veteran's claim. It is merely a recitation of a history provided by the Veteran. It is not a competent medical opinion, based on the clinical or objective evidence, linking the Veteran's right knee disability to his active duty or his service-connected left knee disabilities. See LeShore v. Brown, Vet. App. 406, 409 (1995) (mere transcription of lay history as reported by the veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional). In June 2006, the Veteran underwent a pre-operative examination for a right knee scope scheduled later. (Subsequent VA records indicate that the right knee improved and he did not undergo the surgery). An October 2007 private pain evaluation report provides that the Veteran had chronic knee pain. A June 2008 VA radiographic report provides an impression of slight osteoarthritis, prominent spur off of the patella at insertion of quadriceps tendon, questionable intra-articular loose body. The report of the December 2011 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The resulting diagnosis was bilateral knee osteoarthritis. The examiner provided the opinion that the Veteran's right knee disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left knee disability. The rationale was that there was no evidence of altered gait that would cause an increased load on the right knee. There was no clinical evidence on physical examination that the left knee was so impaired that there would be increased load on the right knee. The X-rays showed mild degenerative changes for both knees which was age-expected. The X-rays showed similar findings in both knees and the findings were relatable to age-related joint degeneration. Also, the interval between the left knee injury and the right knee current pain was far too long for it to be related. The report of the June 2012 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The resulting diagnosis was mild bilateral [knee] degenerative changes. The examiner provided the opinion that the Veteran's right knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury. The rationale was that there was no documentation about any right knee pain until the last 8 years. X-ray imaging and the examination pointed to mild age-related degenerative changes. There was no service connection at this time. The March 2013 VA medical opinion is by the examiner who conducted the December 2011 and June 2012 VA examinations. It provides that she reviewed the claims file as well as the Veteran's VA records. The examiner provided the opinion that the Veteran's right knee disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left knee disability. The rationale was that there were no physical or X-ray findings of severe left knee impairment that would cause an aggravation of the Veteran's right knee. Although this rationale uses the word "aggravation," it is clear that the examiner's opinion is that the Veteran's left knee disabilities did not cause his right knee disability. Addressing whether the Veteran's service-connected left knee disability aggravated his right knee disability, the examiner stated that there were just mild degenerative findings in both knees that were likely age-related. There was no aggravation of the right knee by a left knee impairment since there were no physical or X-ray findings of severe impairment of either knee. She reiterated that the Veteran's X-rays and symptoms indicated a mild age-related disorder of both knees without any aggravation. The Board finds that the December 2011 VA medical opinion regarding secondary causation, the June 2012 VA medical opinion regarding direct causation and the March 2013 VA medical opinion regarding secondary causation and secondary aggravation constitute probative evidence against the Veteran's claim. These opinions are based on current examination results and reviews of the medical record. The examiner explained her opinions with references to the Veteran's active duty and post-service medical history. This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board finds it significant that there is no medical evidence to the contrary of these VA opinions. In fact, the post-service evidence is negative for any medical evidence linking the Veteran's current right knee disability to his active duty or any medical evidence that the Veteran's left knee disabilities proximately caused or aggravated his right knee disability. The Board acknowledges the assertions by the Veteran and his witness in support of his claim. They are competent to testify as to the Veteran's observable symptoms during and after active duty. The Board finds that their assertions are credible. However, the contentions that the Veteran incurred a right knee disability during active duty, or that his service-connected left knee disabilities proximately caused or aggravated his right knee disability, do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran's right knee disability is related to active duty, and whether his service-connected left knee disabilities proximately caused or aggravated his right knee disability) fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran and his witness cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, 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. Further, 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. Jandreau, supra. The Veteran and his witness are competent to state that they observed the claimed right knee symptoms during or after service. The Board finds them to be credible in this regard. However, they are not competent to attribute the coincidence of symptoms occurring during or after service, or before or after the development of left knee disabilities, as establishing the diagnosis and etiology of his current right knee disability. As such, the Board finds that the Veteran's assertions are outweighed by the VA medical opinions addressed above. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for a right knee disability, to include as secondary to service-connected left knee disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a right knee disability, to include as secondary to service-connected left knee disabilities, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs