Citation Nr: 1318359 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 05-06 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1977 to November 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Department of Veterans Affairs (VA) Regional Office in San Diego, California (RO). In March 2007, November 2008, January 2011, October 2011 and January 2013 decisions, the Board remanded this issue for additional development. FINDING OF FACT The Veteran's left knee disability was not incurred in service and is not attributable directly to, or aggravated by, a service-connected disability. CONCLUSION OF LAW Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, the RO provided notice to the Veteran in a March 2007 letter that explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The March 2007 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the March 2007 letter, and opportunity for the Veteran to respond, the March 2013 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the report of March 1980, June 2007, April 2009, February 2011 and February 2013 VA examinations. The most recent February 2013 VA examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the February 2013 VA examination report is sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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"). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The revised revision of 38 C.F.R. § 3.310(b) appears to place substantive evidentiary restrictions on a veteran before aggravation may be conceded. In this case, the Veteran's claim was filed prior to the effective date of the revised regulation (October 10, 2006). As such, the Board finds that the prior version of the regulation is more advantageous to the Veteran and should be applied. In this regard, when a regulation changes and the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran claims that he has a left knee disability as a result of his service-connected left foot or right knee disability. While the Veteran's service treatment records show that he was involved in a motorcycle accident in November 1978 which resulted in injuries to his forearms, right knee and left heel, his service treatment records are negative for complaints or treatments related to a left knee disability. The Veteran underwent a VA examination in March 1980. While complaints of right knee, right leg, and left heel pain are noted, the examination report does not indicate any report of left knee pain. However, on examination, the Veteran's left knee was unstable laterally and the distal segment of the knee moved laterally 10 degrees. The diagnosis was laxity of the medial collateral ligament of the left knee. An opinion as to the etiology of this laxity is not contained in the examination report. October 1994 x-rays of the bilateral knees were normal as there were no fractures or dislocations present. An October 1994 MRI revealed no evidence of meniscal or ligament tears of either knee. There was small joint effusion bilaterally and superior spur formation of the patella bilaterally. The Veteran underwent a VA examination in June 2007. He presented with complaints of intermittent mild left knee pain with no history of inciting trauma. The Veteran was uncertain of the exact date of the onset of his left knee pain. X-rays of the left knee showed no evidence of acute fracture or sublaxation. The diagnosis was left knee pain with no x-ray evidence or abnormality. The examiner concluded that he was unable to describe an association between the Veteran's left knee pain and his documented right knee condition without resorting to mere speculation. The timing and the severity of the Veteran's left knee are ambiguous and could not clearly be related in etiology without speculation. The Veteran underwent a VA examination in June 2008. The Veteran reported that his bilateral knee problems began after a motorcycle accident in 1978. His right knee was diagnosed with multiple ligament injuries. His left knee was also injured but was not treated or looked at the time. X-rays revealed mild degenerative changes of the left knee. The examiner determined that he could not determine whether the Veteran's left knee degenerative changes were directly related to his service without resorting to mere speculation. The examiner noted that the claims file did not specifically document any left knee problems during his time in service. The Veteran underwent a VA examination in April 2009. The Veteran reported that he was in an automobile accident while in the Navy. The examiner noted that x-rays of the left knee were normal as there was no evidence of arthritic changes. The examiner noted that on examination, the only abnormality was on the medial joint line as there was some tenderness and a slightly positive McMurray's. However, this was not definitive enough to diagnose any knee pathology. The diagnosis of the left knee was normal. The examiner noted that the Veteran's service treatment records did have evidence of a calcaneal fracture on the left side and a calcaneal fracture along with the right knee disability that "can alter the gait and lead to increased weight bearing and stresses on the left knee". However, the examiner again noted that there was currently nothing specifically diagnosed in the left knee. The Veteran was afforded with a VA examination of his left knee in February 2011, pursuant to the Board's remand issued in January 2011. The Veteran reported that he injured his left knee during his motor vehicle accident in service. The diagnosis was mild degenerative joint disease of the left knee. The examiner noted that the medical records did not reveal any left knee complaints related to the motor vehicle accident in 1979. The examiner also noted that there were no further complaints of left knee problems during the Veteran's time in the service. Based on his current examination, the Veteran had a full range of motion with mild tenderness at the medial joint line with an otherwise unremarkable examination. There was no left knee instability. The examiner concluded that it was less likely than not that the Veteran's left knee disability was related to his military service or connected to his service-connected left foot or right knee disability. In an October 2011 remand, the Board determined that remand for a supplemental opinion was required to obtain an opinion on whether the Veteran's left knee disability was aggravated by the service-connected left foot or right knee disability. Pursuant to the Board's October 2011 remand instructions, the examiner who conducted the February 2011 VA examination provided an addendum in December 2011. The examiner noted that he had previously opined that the Veteran's left knee condition was less likely than not related to his military service or connected to his service-connected right left foot or right knee condition. However, the examiner determined that he was unable to determine without resorting to mere speculation as to whether the Veteran's left knee disability was caused by or aggravated by any of the other service-connected disabilities. In a January 2013 remand, the Board determined that a new examination with a new VA examiner was required to obtain an opinion on whether the Veteran's left knee disability was caused by or aggravated by any of the other service-connected disabilities as the examiner who conducted the February 2011 VA examination and December 2011 addendum had determined that he is unable to form an opinion without resorting to mere speculation. Per the January 2013 Board remand instructions, the Veteran underwent a VA examination in February 2013. The examiner noted that the Veteran currently had degenerative arthritis of both knees and patellofemoral syndrome with degenerative changes, patellar enthesophyte, of both knees. The examiner also noted that during the Veteran's service, he sustained an injury to his right knee from a motor vehicle accident in November 1978 which resulted in a contusion of the right knee. Further medical findings in September 1979 revealed a diagnosis of a tear of the right anterior cruciate ligament with anterior medial instability of the right knee. The Veteran's service treatment records were silent for complaints, treatment for, or injuries involving his left knee. On examination, there was no instability of the left knee. The examiner noted that the prior diagnosis for the Veteran's service-connected right knee injury, an anterior cruciate ligament injury diagnosed in 1979, was not confirmed by MRI studies or recent orthopedic examination. He noted that MRI studies of the right and left knee in 1994 and 2008 noted an unremarkable patellar tendon, quadriceps femoris tendon, cruciate ligaments, menisci, collateral ligaments, retinaculum and patellar tracking. His present physical examination demonstrated a negative pivot shift sign which suggested that the anterior cruciate ligament is intact. Therefore a correction of diagnoses due to probable error in the original diagnosis should be noted. The examiner also noted that the Veteran developed bilateral patellofemoral degenerative changes and that the new diagnosis was a separate condition, not connected to the Veteran's initial service-connected right knee injury. The examiner found that the new diagnosis was the main cause of the Veteran's present symptoms. The examiner opined that the Veteran's claimed left knee disability was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the Veteran walked without a significant limp or list and was able to toe and heel gait and squat. He had no characteristic calluses on the plantar aspect of the feet to indicate a chronic altered gait. Patellofemoral tenderness was present equally and bilaterally which the examiner felt was not associated with service-connected injuries due to time constraints. The Veteran's usual occupation of a painter required repetitive climbing, prolonged standing and squatting activities which were notorious for development of these knee conditions. Radiographic changes over the years as reported were minimal considering the length of time from initial injury. The usual risk factors causing secondary joint disturbances are not prominent as noted in the claims folder. Therefore, it was less likely than not that the Veteran had developed secondary conditions involving the left knee from his service-connected right knee or left heel disabilities. The examiner also determined that the Veteran's left knee disability was not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner noted that the Veteran's current bilateral knee conditions had not been aggravated by prior service-connected injuries based on a review of his prior medical examination and his current physical examination. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a left knee disability to include as secondary to a service-connected disability is not warranted. As noted above, there is a current diagnosis of mild degenerative joint disease of the left knee; hence, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Initially, as noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this instance however, service connection for arthritis on a presumptive basis is not warranted as the first evidence of arthritis of the left knee is the July 2008 VA x-ray report. As the record does not show manifestations of arthritis within one year of the Veteran's service separation, service connection for arthritis on a presumptive basis is not warranted. With regard to service connection on a direct basis for the Veteran's left knee disability, while the Veteran was involved in a motorcycle accident during service, the Veteran's service treatment records are absent any complaints of, treatment for, or diagnoses of any disability of the Veteran's left knee. Moreover, the first evidence of complaints of left knee pain was at the June 2007 VA examination where he presented with complaints of intermittent mild left knee pain with no history of inciting trauma. While the March 1980 VA examination noted that the Veteran had laxity of the medial collateral ligament of the left knee, the Board notes that subsequent VA examinations, including the most recent February 2013 VA examination, have indicated that the Veteran does not have instability of the left knee. The February 2013 VA examiner specifically found on examination that the Veteran's left knee stability was normal. To the extent that the Veteran is asserting a continuity of symptomatology since service, the Board does not find the Veteran to be credible with regard to any assertions that he has had symptoms of a left knee disability since service. While the Veteran currently reports left knee complaints since his motorcycle accident in 1979, as noted above, his first post-service treatment reports are completely negative for treatment related to his left knee as he made no mention of left knee pain or symptoms related to his left knee. Specifically, in March 1980 the Veteran presented with complaints of bilateral forearm pain, bilateral wrist pain, right knee pain and right leg pain. However, there were no complaints of left knee pain. One would expect that if the Veteran were experiencing problems with his left knee at the time, he would have reported such complaints to the examiners. The Board finds that his documented medical history is in conflict with his current assertions that his current left knee symptoms have continued since service. As the Veteran was not diagnosed with a left knee disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of a left knee disability, the Board concludes that the weight of the evidence is against a finding of continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). The Board also finds that the weight of the evidence is against a finding that the Veteran's current left knee disability is etiologically related to the Veteran's military service on a direct basis. In fact, the only medical opinion addressing the etiology of the left knee disability on a direct basis weighs against the claim as the February 2011 VA examiner concluded that it was less likely than not that the Veteran's left knee disability was related to his military service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Regarding service connection on a secondary basis, the Board notes that there are conflicting medical opinions of record addressing the possibility of such a relationship. As noted above, the April 2009 VA examiner noted that the Veteran's service treatment records did have evidence of a calcaneal fracture on the left side and a calcaneal fracture along with the right knee disability that "can alter the gait and lead to increased weight bearing and stresses on the left knee". Conversely, the February 2011 and February 2013 VA examiners concluded that it was less likely than not that the Veteran's left knee disability was related to his military service or was connected to his service-connected left foot or right knee disability. In this regard, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). 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, and 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 instance, the Board finds that the February 2011 and February 2013 VA examiners' opinions to be the most probative. Regarding the April 2009 VA examiner's notation that the Veteran's service treatment records did have evidence of a calcaneal fracture on the left side and a calcaneal fracture along with the right knee disability that "can alter the gait and lead to increased weight bearing and stresses on the left knee"; the Board notes that an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature and of little probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Additionally, the April 2009 VA examiner also noted that while the in-service left heel and right knee injuries possibly leading to increased stresses on the left knee, there was currently nothing specifically diagnosed in the Veteran's left knee. In contrast, the February 2011 and February 2013 VA examiners had the benefit of a review of the Veteran's claims file, and provided detailed rationales. Per the January 2013 Board remand instructions, the February 2013 VA examiner also addressed aggravation when concluding that the Veteran's left knee disability had not been aggravated by prior service-connected injuries. The VA examiners also addressed the timing of the Veteran's symptoms, as the February 2013 VA examiner noted that radiographic changes over the years as reported were minimal considering the length of time from initial injury and the usual risk factors causing secondary joint disturbances were not prominent as noted in the claims folder. The February 2013 VA examiner also provided a rationale for his conclusions when determining that the Veteran's left knee disability had not been aggravated by prior service-connected injuries based on a review of his prior medical examination and his current physical examination. The examiner also noted that there was probable error in the original diagnosis and that the Veteran developed bilateral patellofemoral degenerative changes and that the new diagnosis was a separate condition, not connected to the Veteran's initial service-connected right knee injury. For these reasons the Board finds the January 2013 VA examiner's opinion to be the most probative regarding the issue of whether the Veteran's current left knee disability is related to service, to include as secondary to a service-connected disability. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence.") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, supra, (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Based on the foregoing, the Board has placed greater probative weight on the February 2013 VA examiner's opinion. Given that the most probative opinion is against a finding of a relationship between a left knee disability and his service, to include as secondary to a service-connected disability, the Board finds that service connection is not warranted. In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA. This includes his statements and the statements of his representative in which they asserted their belief that the Veteran's claimed left knee disability is related to his service or in the alternative, related to his service-connected right knee or left heel disabilities. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, lay persons are generally not competent to opine as to medical etiology or render medical opinions. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to indentify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer."). That is, the Veteran is competent to report that he has left knee symptoms; however, he is not competent to state that his left knee disability is the result of his service or is a result of his service-connected right knee or left heel disability. Accordingly, the Board has placed greater probative weight on the conclusions reached by the VA examiners, who, as medical professionals, are competent to render opinions regarding medical matters. As the preponderance of the evidence is against the Veteran's claim, service connection must be denied. 38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. ORDER Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs