Citation Nr: 1317355 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-39 814 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for vaginitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to May 1992. By a rating action May 1993, the RO denied the Veteran's original claims of entitlement to service connection for a bilateral knee disorder and vaginitis. In July 1999, the RO confirmed and continued those denials, finding that the Veteran had not submitted new and material evidence to reopen her claims. Each time, the Veteran was notified of the decisions, as well as her appellate rights. However, she did not submit a notice of disagreement with which to initiate an appeal. In November 2004, the Veteran filed an application reopen those claims. In April 2005, the RO confirmed and continued the prior denials, again finding that the Veteran had not submitted new and material evidence to reopen her claims. The Veteran disagreed with those decisions, and this appeal ensued. In November 2012, the Board of Veterans' Appeals (Board) found that the Veteran had submitted new and material evidence to reopen her claims. The Board remanded the case for further development to the VA Appeals Management Center (AMC) in Washington D.C. The Board directed the AMC to perform the following actions: 1) Ask whether the Veteran had any further lay or medical evidence that was not presently in the claims file pertaining to the issues of entitlement to service connection for a right knee disorder and for vaginitis. In so doing, VA was provide the Veteran with appropriate releases of information to obtain any evidence cited, as well as advise her that she could submit such evidence on her own; 2) VA was to afford the Veteran an examination to determine the nature and etiology of any right knee disorder and/or vaginitis found to be present; 3) if the Veteran was found to have a right knee disorder, the examiner(s) was to express an opinion as to whether that disorder was related to any incident of the Veteran's active military service, including her inservice knee complaints; 4) if the Veteran was found to have vaginitis, the examiner(s) was to express an opinion as to whether that disorder was related to any incident of the Veteran's active military service; and, 5) with respect to all opinions expressed the examiner had to provide an explanation for any conclusions reached, based upon his or her medical knowledge, the results of the examinations, and the evidence in the claims folder. In December 2012, the AMC requested that the Veteran identify any further lay or medical evidence that was not presently in the claims file pertaining to the issues of entitlement to service connection for a right knee disorder and for vaginitis. To date, the Veteran has not identified such additional evidence. In December 2012, the Veteran also underwent a VA examination to determine the nature and etiology of any right knee disorder of vaginitis found to be present. Following the requested development, the AMC confirmed and continued the denials of entitlement to service connection for a right knee disorder and for vaginitis. Thereafter, the case was returned to the Board for further appellate action. In March 2012, during the course of the appeal, the Veteran had a video conference with the Veterans Law Judge whose signature appears at the end of this decision. FINDINGS OF FACT 1. The preponderance of the probative evidence shows that the Veteran's right knee disorder, diagnosed primarily as degenerative joint disease, was first manifested many years after service and is unrelated thereto. 2. The preponderance of the probative evidence of record shows that the Veteran's vaginitis in and since service is not a chronic disease process, but is rather a series of separate episodes which are acute and transitory and resolve without residual disability. CONCLUSIONS OF LAW 1. A right knee disorder, diagnosed primarily as degenerative joint disease, is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. Vaginitis is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist her in the development of the issues of entitlement to service connection for a right knee disorder and entitlement to service connection for vaginitis. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In November 2004, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete her claims, including the evidence to be provided by her, and notice of the evidence VA would attempt to obtain. VA informed her of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist her in obtaining identified and available evidence necessary to substantiate her claim. VA obtained or ensured the presence of the following relevant evidence either in hard copy or through the Virtual VA electronic filing system: the Veteran's service treatment records; records reflecting her VA treatment from August 1997 through October 2011; records reflecting her treatment by or through Kaiser Permanente from July 2000 through March 2006; and the transcript of her March 2012 video conference with the undersigned Veterans Law Judge. The hearing transcript shows that the presiding Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, he identified the material issues; informed the Veteran that the record of the hearing would be transcribed; informed her that with respect to service connection, it was important to link her disorders to an event in service; inquired as to her treatment in and after service; asked her about her employment after service; informed her of her right to submit additional evidence; informed her that she could waive her right to have additional evidence considered by the RO/AMC prior to the Board; asked whether there were any incidents in service, other than a 1988 left femur fracture, which had an impact on her right knee disorder; and asked her whether she had anything else to add. The Veteran's hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2). See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). During development of the original claims in October and November 1992, and during development of the reopened claims in May 2006, June and August 2009, March and December 2010, and December 2012, VA examined the Veteran to determine, in part, the nature and etiology of any right knee disorder or vaginitis found to be present. The VA examination reports show that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented her medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examination and record review are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support her claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal In considering the Veteran's appeal, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 19. 5 (2012). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). For certain disabilities, such as degenerative joint disease (arthritis), service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. During her March 2012 video conference, and in various correspondence, the Veteran stated that her right knee disorder was primarily the result of a 1988 injury in service in which she broke her left femur. She reported that she had had right knee problems since that time and that service connection was therefore warranted. With respect to vaginitis, the Veteran notes that she was treated on many occasions in service for such a disorder and has continued to receive treatment since her separation from service. Therefore, she maintained that service connection was also warranted for that disorder. However, after carefully considering the claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against those claims. Accordingly, the appeal will be denied. The Veteran is competent to give testimony about what she experienced in and after service. For example, she is competent to report when she first noticed her right knee disorder and/or vaginitis and whether or not they have been chronic since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012)((the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b)), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Right Knee A review of the evidence discloses that when the Veteran entered service, her right knee was normal. During her November 1980 service entrance examination, she responded "No", when asked if she then had or had ever had a trick or locked knee. On examination her lower extremities were found to be normal. Thus, her right knee was presumed to be in sound condition at the time she entered service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012) On several occasions during service, the Veteran's was treated for complaints of a knee disorder. In February and March 1981, she was treated for complaints of bilateral knee pain and stiffness. The diagnoses were muscular stiffness and chondromalacia. In November 1988, the Veteran fractured her left femur, and in February 1989, she complained of left knee pain. However, she did not report any right knee involvement. In December 1990, the Veteran reported discomfort in her left hip and knee which she alleged had migrated to her right knee, and the health care provider was suspicious of an early inflammatory process. In May 1991, she again complained of bilateral knee pain, and the diagnosis was polyarthralgias with symptoms suggestive of inflammatory disease. In May 1992, she also complained of knee pain. However, despite her complaints during service, there was no evidence of a chronic, identifiable right knee disorder. In October 1992, pursuant to her claim for service connection for a knee disorder, the Veteran was examined by VA. Although she complained of multiple joint pain, including that in her knees, a right knee disorder was not identified. The diagnosis was multiple arthralgias, and laboratory testing revealed an increased sedimentation rate of uncertain etiology. Arthralgia is defined as pain in a joint. See, e.g., Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, the law has long provided that pain alone, that is, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 259 F.3d 1356, 1361-1362 (2001). Therefore, the diagnosis of arthralgia, by itself, is not a disability for which service connection may be granted. There were no further complaints or clinical findings of a right knee disorder until the mid-2000's, when the Veteran was treated at or through Kaiser Permanente. In May 2005, she complained of right knee pain, however, X-rays taken the following month showed that the right knee was normal. In March and August 2006, she again complained of right knee pain. Although there was a diagnosis of osteoarthritis, there were no X-rays taken to confirm the diagnosis. Given that arthritis was suspected, the Veteran underwent VA examinations in June 2009 and December 2010 and reported right knee tenderness, locking pain and crepitus. However, there were no diagnoses reported with respect to the right knee. Therefore, in December 2012, the Veteran was reexamined by VA to determine the nature and etiology of any right knee disorder found to be present. In December 2012, the VA examiner found that the Veteran had degenerative joint disease of both knees, confirmed by imaging studies. However, the examiner opined that the disability was not the result of an injury, event, or illness in service. She noted that the Veteran's degenerative joint disease was very mild in nature and that it was associated with the normal aging process. In addition, the VA examiner noted that the normal physical requirements of the Veteran's job at the Post Office would have had more of an impact on her arthritis than incidents which occurred 30 years earlier during service. Aside from the Veteran's testimony, there is no evidence of a nexus to service. As noted above, lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether her right knee disorder was caused by her period of service falls outside the realm of common knowledge of a lay person. See Jandreau, supra., at 1377 n.4 (lay persons not competent to diagnose cancer). Therefore, her unsupported lay opinion lacks probative value. In sum, the preponderance of the evidence is against a finding of a chronic identifiable right knee disorder in service or of a nexus between the Veteran's current right knee arthritis and an incident in service. Therefore, the criteria for service connection are not met. Accordingly, service connection for a right knee disorder is not warranted, and the appeal is denied. Vaginitis Service treatment records indicate that beginning in March 1981 and continuing through April 1989, the Veteran was treated on many occasions for vaginitis. In October 1987, she reported a history of pelvic pain. She underwent an exploratory laparoscopy, during which, it was noted that she had minimal endometriosis. In June 1991, the Veteran was again treated for endometriosis. In November 1992, the Veteran was examined by VA. She was having no vaginal discharge or pruritis at the time of the examination. She was reportedly taking Tylenol, in part, for menstrual cramps. Following the examination, the relevant diagnosis was endometriosis by history. Since service, the Veteran has continued to receive treatment for vaginitis. Records show that in July 1999 and January 2002, she was treated by or through Kaiser Permanente for a diagnosis of vaginitis; and in 1999, 2009 and 2010, VA treatment records show that her active problems included vaginitis. The Veteran was reexamined by VA in December 2012, and alleged that vaginitis consistently occurred when she took antibiotics for bouts of sinusitis. The VA examiner acknowledged that such a causal relationship was possible but that vaginitis resolved with the cessation of the antibiotics. In addition, she noted that vaginitis was a common problem also associated with bathing, vaginal douching, sexual transmission, and/or thyroid disease. In any event, she did not find that the Veteran had chronic vaginitis or that the vaginitis was related to that in service. In this regard, the examiner noted that the Veteran did not have vaginitis at the time of the December 2012 VA examination. Although the Veteran was treated frequently for vaginitis in service, the preponderance of the foregoing evidence is against a finding of a nexus to service, either by medical opinion or continuity of symptomatology. Significantly, there is a gap in the reports of or treatment for vaginitis for a ten year period from 1989 to 1999. Moreover, when examined by VA in 1992 and 2012, the Veteran did not have vaginitis. In addition, the 2012 VA examiner strongly suggested that vaginitis is not chronic in nature. That is, it does not represent a chronic, disease process. The VA examiner stated that each episode of vaginitis constitutes an acute episode which resolves without residual disability. She noted that this was particularly so in the Veteran's case with respect to the onset of vaginitis associated with the ingestion of antibiotics. Although the Veteran strongly contends that her vaginitis is a chronic disorder which was first manifested in service, the diagnosis and cause of vaginitis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, her unsupported lay opinion lacks probative value. To the extent that the Veteran alleges such chronicity within the meaning of a "chronic disorder," her reliance is misplaced. A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Vaginitis is not such a chronic disease as listed by law - the Federal Circuit has specifically ruled on this issue and found that not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed under 38 C.F.R. § 3.309(a). Walker, supra. Thus, if the veteran does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. In sum, the preponderance of the evidence is against a finding that the Veteran's vaginitis in service was part of a chronic, identifiable disease process or of a nexus between the Veteran's vaginitis and any incident in service. Therefore, the criteria for service connection are not met. Accordingly, service connection for vaginitis is not warranted, and the appeal is denied. Additional Considerations In arriving at the foregoing decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. Since the preponderance of the evidence of record is against the Veteran claims, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for vaginitis is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs