Citation Nr: 1317504 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 05-24 480A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issues on appeal were last before the Board in November 2012 when they were remanded for additional evidentiary development. FINDINGS OF FACT The preponderance of the competent probative evidence demonstrates that the Veteran's left and right knee disorders were not etiologically linked to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder are not met. 38 U.S.C.A. §§ 1131, 5103, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.303, (2012). 2. The criteria for service connection for a left knee disorder are not met. 38 U.S.C.A. §§ 1131, 5103, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.303, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has a duty 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by letters sent to the Veteran in April 2004, January 2006, February 2008 and November 2008. The claims were readjudicated after the notifications, the most recent readjudication is documented in the March 2013 supplemental statement of the case. Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA. VA has also satisfied its duty to assist the Veteran at every stage of this case. All available VA and private medical records identified by the Veteran are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The service treatment records appear to be incomplete in that there are no entrance or exit examination reports. The service treatment records identified by the Veteran as being pertinent to the claims have been associated with the claims file. The Veteran was informed of the fact that the service treatment records appear to be incomplete in the January 2006 statement of the case. The claims are not being denied based on the lack of pertinent service treatment records. The Veteran has not indicated that there is any pertinent outstanding evidence which has not been obtained. VA examinations with respect to the claims were conducted and the reports of the VA examinations have been associated with the claims file. A Veterans Health Administration (VHA) opinion was also obtained. The Board finds reports of the VA examinations and the VHA opinion are sufficient to accurately adjudicate the current claims. The VHA examiner who conducted the most recent examinations had access to and reviewed the evidence in the claims file and also physically examined the Veteran. The Veteran's self-reported medical history was recorded. Opinions as to the etiology of the knee disorders were provided and the opinions were supported by adequate rationale with citations to pertinent records in the claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159 (2004). The examination reports also satisfy the Board's prior remand instructions. VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with statements of the case and supplemental statement of the case, as appropriate, which informed them of the laws and regulations relevant to his claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Service connection criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Competency The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing knee pain in service and thereafter and being treated for knee pain during active duty. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." The Court found the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Federal Circuit Court determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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")). See Barr. The Board finds the determination of the etiology of the Veteran's knee disorders do not involve simple diagnoses or medical assessments. See Jandreau; see also Woehlaert. The Veteran is not competent to provide a complex medical opinion regarding the diagnosis or etiology of his knee disorders. See Barr. Factual background In April 2004, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for left and right knee disorders. He indicated that the disorders began in June 1980 and he was treated for left knee problems from June 1980 to June 1981 and for right knee problems from June 1982 to March 2004. Beginning in May 1980, the service treatment record document knee complaints and treatment. For example, in May 1980, the Veteran sought treatment for knee pain. In July 1980, the Veteran was diagnosed with bilateral tenosynovitis. In December 1980, it was noted that the Veteran had a history of intermittent knee pain and swelling. The assessment was chondromalacia. As set out above, the Veteran's separation examination has not been associated with the claims file. The first post-service medical documentation of knee problems is a private clinical record dated in November 1983. This reveals the Veteran sought treatment for left knee problems after he had twisted the knee resulting in pain and swelling several hours later. The diagnosis was acute synovitis. There was no evidence of ligamentous injury. A November 1983 X-ray examination of the left knee was interpreted as suggesting joint effusion. The knee was otherwise negative for recent fracture, dislocation of other osseous pathology. The Veteran did not indicate, in any way, that the knee injury was present from the time of discharge to the present. The record indicates the Veteran was being seen for an acute knee injury. In December 1997 the Veteran informed a clinician that he twisted his right knee at work that month. The assessment was patellofemoral sprain which was resolving. A December 1997 document from USAir indicates that the Veteran injured his right knee in December 1997. There was no mention of knee problems beginning during active duty. A private clinical record dated in January 1998 indicates the Veteran reported that, every time he went to work, he had difficulty on ladders and his knee would ache the next day. The header of the clinical record includes the annotation of "worker's compensation." Physical examination revealed no heat or crepitation. The Veteran received a corticosteroid injection. Another record dated the same month includes the annotation that the lack of heat, effusion, or joint line tenderness effectively excludes medial or lateral meniscus injury. Patellofemoral pain syndrome is the most common problem to cause anterior knee pain without heat or effusion. A VA joints examination was conducted in September 2004. It was noted that the Veteran was seen on several occasions in the military around 1983 for knee problems and a diagnosis of chondromalacia. At that time, the Veteran had some pre-patella effusion. The Veteran reported knee pain which increased with stairs and was especially aggravated by kneeling. The Veteran used a knee brace. Physical examination was conducted. The impression by history was chronic bilateral knee sprain. The examiner opined that the history presented was not consistent with chondromalacia to the patella. The examiner opined that the knee condition was not at least as likely as not related to the Veteran's reported crawling on aircraft. The examiner also opined that the knee condition was not at least as likely as not related to military service. In December 2004, the Veteran argued that his knees were damaged by the heat due to his having to crawl on hot surfaces to tend to aircraft. In March 2007 R.B.W., D.O., wrote that the Veteran had patella-femoral syndrome of both knees related to injuries sustained while in the military service for maintenance of airplanes. The maintenance required the Veteran to kneel on the wings of aircraft in extremes of heat and temperature. The author wrote the Veteran has persistent knee pain with instability. The Veteran testified before the undersigned in May 2007 that he was treated during active duty for knee problems. Treatment consisted of physical therapy, anti-inflammatories and wrapping. The first time he received post service knee treatment was in 1982 or 1983. He did not have any knee accidents or injuries from the time he was discharged in 1981 until the time he started receiving the post service knee treatment. It was suggested in service that the Veteran have a surgical procedure on his knees but he decided not to. He reported that, during active duty, he was constantly kneeling down on hot surfaces in Nevada as well as ascending and descending ladders. A buddy statement which was received in April 2008 indicates the author knew the Veteran had problems from swelling and inflamed knees. The Veteran informed the author that a doctor told the Veteran that the condition was a direct result of extreme desert heat and the intense physical activities he was required to perform at work. A VA examination was conducted in June 2008. It was observed that the Veteran was seen for bursitis of the right knee in May 1980 and for tendonitis in June 1980. The Veteran gave a history of problems with both knees since 1980. He reported he had constant pain and progression of limitation of motion over the past 28 years. He gave a history of recurrent swelling and reported he had an aspiration and cortisone injections in the past. He gave a 15 year history of buckling and an 8 to 10 year history of locking. He used a cane and a knee brace. He was currently working as an X-ray technician which required bending and kneeling. He denied missing any work over the past year. Physical examination was conducted. The impression was bilateral patella femoral syndrome. The examiner opined that the patella femoral syndrome was less likely as not related to events that occurred in military service. The rationale was that the military service records and post separation medical records did not indicate chronicity. At the time of the February 2009 VA examination, the Veteran reported he had a history of bilateral knee pain since 1980. The pain was typically anterior and aggravated by kneeling. He reported episodic locking and buckling. The knees had become progressively worse. Physical examination was conducted. The diagnosis was bilateral patella femoral syndrome. The examiner opined that the bilateral knee condition is less likely as not caused by or a result of repeated bending and kneeling as an aircraft mechanic during active duty. The rationale was that the service treatment records do not document chronicity or episodes of repetitive trauma. There were numerous post separation medical records to review. The examiner observed that chronic bilateral knee pain is not documented in the post separation notes while problems with the Veteran's neck, lower back and shoulder were all well documented. An expert VHA opinion was produced in September 2010. The examiner summarized the Veteran's military medical records and post-service medical records. It was found that it was clear that neither the military medical records nor the VA medical records document any chronicity episodes or repetitive trauma to the left knee. He noted that chronic bilateral knee pain which is not a diagnosis is not documented in the VA medical records. The examiner wrote that, even assuming the correct diagnosis is patellofemoral disorder, 80% are successfully treated by non-operative measures. They remain a challenge to the orthopedic surgeon with the Insall Classification arranging them from condition with cartilage damage, variable cartilage damage to usually no cartilage damage. The Veteran had the diagnosis of bursitis and tendonitis. The examiner noted these conditions do not involve the articular cartilage surfaces of either the patella or the femoral trochelas. The examiner observed there is no mention in the physical examination during active duty of mal-alignment or synovialplical syndrome which do have variable cartilage damage. The examiner wrote that the term chondromalacia is often used, in the examiner's opinion, erroneously when an accurate diagnosis is not made. Patellofemoral arthritis is found in 79% of cadavers in isolation or in combination with tibiofemoral arthritis. A treatise was referenced as indicating that 45 patients with true chondropathy of the patella were presented after a 12 year follow-up study was completed. 81% of the study patients had no knee pain. The examiner observed that, if one simply assumes the Veteran's condition, while in the U.S. Air Force was anterior knee pain, then a review of the conditions that cause anterior knee pain might be useful in clarifying this issue. There is no evidence for patellofemoral arthritis, infection, tumor, complex regional pain syndrome, extensor mechanism pathology, tibiofemoral pathology, hip pathology or postural abnormalities. The reported physical findings in May 1980/July 1980 do not even suggest a diagnosis of patellofemoral pathology, i.e., there was no lower limb alignment disorder, muscle atrophy, effusion, loss or range of motion, patellar tilt, lack of patellar excursion, tightness of the lateral retinaculum, maltracking of the patella, no tibiofemoral joint pathology or any hyper mobility of the patella noted. The examiner found there is no evidence to support the claim that the Veteran's current left knee problem was caused as a result of active military service. The examiner was unable to find any orthopedic surgical literature that would support the thesis that kneeling caused patellofemoral disorders such as chondromalacia. In fact, there is more compressive force transmitted to the patellofemoral joint with ascending stairs or performing lower extremity muscle strengthening exercises than in kneeling. Is the examiner's opinion that the Veteran's current left knee pain is not the result of any injury sustained while on active duty in the US Air Force. In September 2010, an addendum to the examination report was prepared. The examiner wrote that there is no evidence to support that the Veteran's current left or right knee problems were caused as a direct or indirect of military service. He wrote that he remained unable to find any evidence in orthopedic literature that would support the thesis that kneeling caused patella femoral disorders such as chondromalacia. In fact, there is more compression force transmitted to the patella femoral joint with ascending stairs or performing lower extremities strengthening exercises than in kneeling. It is the examiner's opinion that the current left and right knee pains were not the result of injury sustained while on active duty in the US Air force. The issue on appeal was remanded in November 2012 in order to allow the private health care provider, Dr. W. to provide a rationale for why he found that the Veteran's knee disorders were due to active duty. In February 2003, the physician responded by indicating that it is at least as likely as not that the knee problems were caused by or a result of active duty. No rational was provided despite the request that it should be set out. Analysis The Board finds that service connection is not warranted for left or right knee disorders. While the evidence demonstrates that the Veteran was treated for knee problems during active duty, the preponderance of the competent probative evidence also demonstrates that the Veteran's current knee disorders were not etiologically linked to his military service. The evidence which supports the Veteran's claim consists of the Veteran's testimony and written arguments submitted by the Veteran and his representative as well as the March 2007 medical opinion from R.B.W., D.O. As set out above, the Veteran is a lay person. He is competent to report on pain and restrictions he felt in his knee but he is not competent to diagnose the internal pathology which produces that pain nor is he competent to link the internal pathology to his active duty service. The Board finds that Dr. R.B.W.'s medical opinion is entitled to some probative weight. The doctor diagnosed the presence of patella-femoral syndrome of both knees and linked the disorder to injuries sustained during the Veteran's military service. The probative value of the opinion is lessened, however, by the failure of the doctor to provide a rationale for why he determined the currently diagnosed patella-femoral syndrome was etiologically linked to the in-service knee disorders diagnosed as bilateral tenosynovitis and chondromalacia. He also did not provide a rationale for why he found that there was an etiologic link between the currently existing knee disorders and the Veteran's activities during active duty including kneeling on planes in hot weather as argued by the Veteran. When given a chance to provide supporting rationale for the opinion, the doctor merely indicated that it was at least as likely as not that there was an etiologic link without providing any supporting rationale. The majority of the health care professionals who have examined the Veteran's medical history have opined that there is no link between the active duty knee disorders and the currently diagnosed disorders. The examiners who conducted the VA examinations in September 2004, June 2008 and February 2009 all determined that the currently existing knee disorders were not linked to the Veteran's active duty service. The Board finds that these examination reports also are entitled to some probative weight. The probative weight is lessened, somewhat, for each document for different reasons. The report of the September 2004 VA examination did not support its negative opinion with any rationale other than the history of the injury was not consistent with type of injury. The failure to provide a stronger rationale reduces this probative value. The reports of the June 2008 and February 2009 VA examinations supported the negative opinions by citing to the fact that there was no chronicity of knee symptomatology from active duty to the present. As set out above, however, the Veteran is competent to report on knee pain he experiences and he is also competent to provide evidence regarding how long he experienced the problem. The June 2008 VA examination report finding of no link based on lack of continuity did not support the finding by any other rationale. The failure to cite to any rationale significantly reduces the probative value of the opinion in light of the Veteran's competency to report as to chronicity. The Board finds, however, that the report of the February 2009 VA examination should be accorded probative value. While this report also cites to a lack of chronicity of knee problems, the author of the report also supported this determination by citing to a lack of pertinent medical complaints in the post-service medical evidence. The Board finds this constitutes medical evidence which supports a finding that the Veteran did not have continuity of knee symptomatology sufficient to link current knee problems to the Veteran's active duty service. The examiner reviewed the medical evidence, found a lack of pertinent annotations, and advanced an opinion as to the etiology of the current knee disorders, at least in part, on his review of the medical evidence and what he thought should have been there is there was continuity of knee symptomatology. The Board finds the most competent persuasive piece of evidence regarding the etiology of the current knee disorders is the report of the VHA examination. The examiner had access to and reviewed all the evidence in the claims file. He found no link between current knee problems and the Veteran's active duty service. The opinion was supported by citations to pertinent evidence in the clinical records including comparing the in-service complaints and treatment with current knee problems and a discussion of the different pathology involved. Citations were made to pertinent medical research. The examiner who prepared the expert medical opinion specifically conducted research in an attempt to determine if there was a link between the Veteran's complaints of kneeling on hot aircraft during active duty and current knee pathology. The examiner could find no such link. The Board finds this piece of evidence is entitled to significant probative weight. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). For all the forgoing reasons, the Board finds that service connection for a left knee disorder and for a right knee disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent probative evidence weighs against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. ____________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs