Citation Nr: 1317310 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 12-23 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for retropatellar chondromalacia, claimed as a right knee disability REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from November 1971 until October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota which denied entitlement to service connection. The Veteran appealed the denial of entitlement to service connection, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy. 2. The Veteran had a right knee injury in service. 3. The weight of the lay and medical evidence does not demonstrate that retropatellar chondromalacia of the right knee was incurred in service or is related to service. CONCLUSION OF LAW The criteria for service connection for retropatellar chondromalacia, claimed as a right knee disability, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in May 2011, prior to the initial adjudication of the service connection claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See, Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates in the May 2011 letter. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA examination. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. In a November 2011 statement the Veteran indicated that his "VA doctor" encouraged him to continue his efforts at seeking compensation for the right knee without identifying specific treatment. In May 2011 the Veteran was instructed to inform VA of the location of all relevant treatment, specifically including treatment at VA facilities. Beyond this single mention of his "VA doctor," the Veteran has not identified any VA or private treatment relating to the knee and there is no affirmative indication that treatment from the Veteran's VA doctor is referential to the knee. Accordingly that such evidence is not included with the claims file does not violate VA's duty to assist the Veteran. With regard to examination, the Veteran was afforded a VA examination in July 2011 during which the examiner, reviewed service treatment records, conducted a physical examination of the Veteran, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See, Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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). Service Connection for a Right Knee Disability Entitlement to service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). The claimed right knee condition at issue here, retropatellar chondromalacia, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, to the extent that the Veteran's claim is read broadly to include any disease of the right knee, the Veteran had still has not been diagnosed with a chronic disease listed under 38 C.F.R. § 3.309(a) and thus, again, 38 C.F.R. § 3.303(b) does not apply. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. The Veteran contends that he injured his right knee during basic training at Fort Lewis in Washington State. Specifically, he has stated that while performing structured physical training using a pogo stick, his right knee cap was "knocked off" and he was put in a cast which he wore throughout the remainder of his basic training. For six weeks of basic training the Veteran was placed on a "Physical Profile" and certain activities such as standing, marching and walking were limited. The Veteran has also stated that he has had ongoing right knee pain since his injury. The Board notes that to the extent that the claims file includes documentation of unverified National Guard service, the Veteran has not indicated that the claimed right knee disability was incurred in or aggravated by such service and there is no evidence to suggest that this is the case. The Veteran has not alleged that the claimed disability was incurred in combat, nor has evidence been associated with the record which indicates that the Veteran engaged in combat during service. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. Service treatment records show that on enlistment examination in September 1971, the Veteran denied any history of bone, joint or other deformity, lameness, and "trick" or locked knee. Physical examination revealed the lower extremities to be normal with respect to strength and range of motion. In December 1971 the Veteran reported a painful right knee following a twisting injury in which the knee gave way. A physical examination showed marked effusion of the right knee, painful limitation of motion, and a positive McMurray test. X-ray imaging revealed right knee swelling of the soft tissues over the anterior tibial tubercle and some fragmentation. This was compatible with Osgood Schlatter's Disease. There were no other significant bony abnormalities. An additional December 1971 notation indicates that the Veteran "probably dislocated his patella," and recommended that he be placed on a six week "L-3" physical profile. The physical profile on which the Veteran was placed, limited marching and walking to the Veteran's "own pace," prohibited standing, marching, or walking, for longer than 30 minutes or farther than 1 mile without a 10 minute rest, prohibited running and jumping, and limited kneeling. The Veteran's right knee condition was listed as "temporary." The Veteran was reevaluated in January 1972 and the diagnosis was acute dislocated right patella, Osgood Schlatter, and patellar tendon ossicle and it was recommended that the Veteran's physical profile be made permanent. In January 1972 the Veteran's physical profile was made permanent and his defects were listed as: "Chronic abnormality of a localized segment of bone of the right knee area associated with pain when the right knee is subjected to certain stresses. (Osgood Schlatter's disease)." In October 1974 the Veteran underwent a hardship evaluation. At that time the Veteran endorsed a history of broken bones and lameness, but denied "trick" or locked knees. A physical examination indicated that the lower extremities were normal, other than a dislocated right knee during basic training. There were no current right knee disorders indicated. In September 1991 the Veteran underwent an enlistment examination for the Army National Guard during which he affirmatively denied bone, joint or other deformity, lameness, and "trick" or locked knees. A physical examination showed that the Veteran's lower extremities were normal with respect to strength and range of motion. In March 1993 in an "Over 40" examination, the Veteran denied any history of bone, joint or other deformity, lameness, and "trick" or locked knees. A physical examination indicated that the Veteran's lower extremities were normal with respect to strength and range of motion, and specifically that his range of motion was acceptable. Based on the foregoing, the service treatment records show an in-service right knee injury leading to the diagnoses of Osgood Schlatter's disease and a dislocated right knee. The Veteran was placed on a physical profile which was eventually made permanent, however on subsequent examinations in September 1991 and March 1993 the Veteran's lower extremities were normal. The Board finds that the Veteran had a right knee injury during basic training. The Board finds that the weight of the lay and medical evidence does not demonstrate that the currently diagnosed retropatellar chondromalacia of the right knee was incurred in service or is related to active service. In July 2011 the Veteran underwent a VA examination in which he stated that he injured his right knee during basic training when he was struck in the knee and the patella subluxed laterally. The Veteran endorsed pain in the knee when standing since the injury, and his limit of standing was 15 to 20 minutes. For the past few years, the Veteran had been having severe pain when the knee was twisted, and weakness when getting up from a kneeling position. The Veteran had occasional stiffness and occasional giving way of the knee. There was no locking, dislocation, or subluxation and the knee occasionally swelled. The Veteran denied the use of pain medication, braces or assistive devices. On physical examination, there was no effusion, redness, heat, guarding, deformity, abnormal weight bearing, or ankylosis. There was no objective evidence of pain in the knee at rest, however the Veteran grimaced with flexion of the knee. There was no tenderness of the bursae, joints, or ligaments. Radiographic imaging showed slight narrowing of the medial compartment, mild degenerative spurring of the interior patellar surface and narrowing of the patellofemoral joint. The impression was retropatellar chondromalacia of the right knee. The examiner also noted that retropatellar chondromalacia and long-standing history of patellofemoral syndrome are common and not usually associated with a specific injury. The examiner pointed out that following the Veteran's right knee injury during basic training, the Veteran was able to return to "usual physical training." Thus, based on the physical examination, review of the service treatment records, and the Veteran's history, the examiner concluded that the Veteran's right knee condition was less likely as not caused by or a result of in-service injury. In September 2011, VA received a signed statement from the Veteran's brother stating that "I have personally witnessed [the Veteran's] knee injury sustained in basic training." Additionally, the Veteran has submitted numerous statements, including those of April 2011, September 2011, August 2012 and October 2012 averring that he suffered a right knee injury in basic training during active service. Having already found as a matter of fact that such an injury did occur, such evidence is not additionally probative in the Board's determination regarding the Veteran's entitlement to service connection for his right knee injury. Furthermore, while endorsements of knee pain are competent, the association of the pain the Veteran experiences today with an injury incurred more than 40 years ago is a complex medical determination which the Veteran has not been shown to have the requisite medical expertise to make. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly his statements are of limited probative value. To the extent that the Veteran has claimed recurrent symptomatology, such a claim tends to weigh against the Veteran's credibility and further reduce the probative value of his lay statements. Specifically, while he endorsed such symptoms now, he did not mention any right knee problems on hardship evaluation examination in October 1974, on enlistment examination in September 1991, or on Over 40 examination in March 1993. Also of limited probative value are medical treatise documents submitted by the Veteran in August 2012. Specifically, the Veteran submitted an article from a Mayo Clinic internet website entitled "Chondromalacia patella" which discusses the definition, symptoms, risk factors, and complications of chondromalacia patella. He also submitted an article from Medscape entitled "Patellofemoral Syndrome" discussing the background, pathophysiology, and epidemiology of patellofemoral syndrome. Another submitted article from Medscape, "Patellar Injury and Dislocation," indicates, among other things, that patellar pain may result from traumatic injury and tends to present more frequently in men than women. Finally an article from the website knee1.com, called "Retropatellar Pain Syndrome," states a description, the causes, and the risk factors associated with retropatellar pain syndrome. Medical treatise evidence, in some circumstances, may constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, generic information from a medical journal or treatise is "general and inconclusive" to establish a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). A medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks v. West, 316-17. The Board has considered all of the documents submitted by the Veteran, however in light of the lack of a competent opinion from a medical professional with the expertise to interpret these documents alongside the specific circumstances of the Veteran's history, the article is of limited probative value in the Veteran's specific case. Of far greater probative value is the well-reasoned opinion of the VA examiner who concluded, based on a review of the Veteran's history combined with a physical examination of the Veteran, that the Veteran's current retropatellar chondromalacia is less likely as not caused by or a result of his in-service injury. In considering the lay and medical history, the Board reiterates that a veteran is competent to give evidence about what he has experienced through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus in this case the Veteran's statements endorsing ongoing right knee pain since his in-service injury are competent as knee pain is an observable symptom. The Board notes however that on his hardship separation examination the Veteran did not endorse knee pain or troubles, nor did he endorse any symptomatology on examinations in September 1991 and March 1993. Rather it was not until 2011, when seeking compensation benefits, that the Veteran first endorsed continuous pain since his in-service injury. The Board is of course cognizant of possible self interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore assertion as to any matter upon which the Veteran is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Having reviewed all of the evidence of record, 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, entitlement to service connection for a right knee disorder is denied. ORDER Service connection for a right knee disorder is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs