Citation Nr: 1318735 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-44 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the left knee post total knee arthroplasty (left knee disability). 2. Entitlement to service connection for degenerative joint disease of the right knee post total knee arthroplasty (right knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from April 1966 to February 1970. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a March 2010 hearing before a Decision Review Officer (DRO) and the transcript of that hearing is contained in the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Left knee degenerative joint disease was not manifest during service or within one year of discharge from service and is unrelated to service. 2. Right knee degenerative joint disease was not manifest during service or within one year of discharge from service and is unrelated to service. CONCLUSIONS OF LAW 1. Left knee degenerative joint disease was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Right knee degenerative joint disease was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for certain chronic diseases, including arthritis, may be granted, even if not otherwise established as incurred in or aggravated by service, if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases shown in service or within the presumptive period of 38 C.F.R. § 3.307, service connection may also be granted if there was a showing of the chronic disease in service and continuity of symptomatology since service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. On his Report of Medical History completed when he entered service, the Veteran checked that he had a history of "trick" or locked knee. However, his lower extremities were found normal on his entrance examination in February 1966. The Veteran's service treatment records reflect that in August 1968 he sought medical treatment, reporting his left knee gave out on him. He was assessed with patella femoral syndrome and told to perform quadriceps exercises. He attended 15 sessions of physical therapy, and was discharged from physical therapy after reporting his condition had improved greatly. The Veteran reported he had previously experienced instability in his left knee. On his discharge Report of Medical History the Veteran reported no history of "trick" or locked knee. His lower extremities were found normal on his exit examination in September 1969. In March 2010 the Veteran testified before the DRO that he did not having any knee problems at the time he entered service. He stated from September 1966 to October 1967 when he was in Korea, his job was to climb utility poles. The Veteran said although he experienced knee pain, he took over-the-counter pain medication and did not seek professional medical treatment while in service until August 1968 after returning from Korea. The Veteran stated that during physical therapy in service he was taught exercises, and when he reported that he also had problems with his right knee, he was told to do the same exercises on that knee. The Veteran stated that his knees were still bothering him at the time he left service, he just didn't mark it on his medical history report. He said immediately after service he continued to have problems with his knees, but he was able to choose his activities, take pain medication, and continue some of the exercises he was taught in physical therapy. He said he sought professional medical treatment for his knees approximately three to four years after leaving service, but testified those records were no longer available. The Veteran testified that once he had to take off work for three days due to his knees. He said his knees continued to hurt until 2008 when he had both knees replaced. According to private medical records, in August 2004 the Veteran complained to his family doctor about having a left knee problem for two to three days. Decades after service, providing evidence against this claim. An MRI impression was a tear of the body-posterior horn of the medical meniscus with suspicion of a small focial meniscal avulsion frangment lying adjusted to the body-posterior horn of the medial meniscus. In September 2004 a private orthopedic surgeon noted the Veteran's report of falling off of a ladder three to four weeks prior that resulted in his knee popping and subsequent pain. He diagnosed a left medial meniscal tear, mild degenerative joint disease, and a Baker's cyst. He also referenced a Baker's cyst that was removed from the Veteran's knee in 2000 and stated that the knee had been doing well since then, providing more evidence against this claim as this evidence indicates clearly a post service injury without citing a service problem. In July 2006 the Veteran returned to see the orthopedic surgeon, reporting long-standing bilateral knee pain (this is consistent with the fall in September 2004, several years earlier), the left greater than the right. He said his knees do not lock, swell, or give way. He was assessed with severe bilateral knee degenerative joint disease, his left knee slightly more symptomatic than his right. In December 2006 the Veteran was seen by another orthopedic surgeon who had x-rays taken showing significant degenerative joint disease with complete loss of the medial joint space on the right and significant degenerative changes in the medical compartment of the left knee. The doctor diagnosed severe osteoarthritis and stated that the only hope for long-term relief was a total knee arthroplasty. Noting that the Veteran's right knee was more symptomatic than his left, the doctor recommended the Veteran have his right knee operated on first. The Veteran had his right knee replaced in February 2007 and his left knee replaced in June 2008. The Veteran underwent a state disability examination in March 2007 in which the examiner stated that the Veteran reported bilateral knee pain progressive over several years. Importantly, citation to a decade's long knee problem was not indicated, providing yet more evidence against this claim as the Veteran served from April 1966 to February 1970, more than 43 years ago. In an April 2008 statement the Veteran stated that he was not trained on how to correctly climb electrical poles and his knees began hurting when he was assigned to do so on Korea. He said his knees have continued to get worse since then, ultimately prompting him to quit working. In his October 2008 notice of disagreement with the RO's denial of his claim, the Veteran stated that if his knee was bad when he went into the service, then service worsened it. In April 2010 the Veteran underwent a VA joints examination in which the examiner was asked to opine on the Veteran's left knee disability. The examiner found both knees had bony joint enlargement, crepitus, and abnormal motion and his right knee had clicks or snaps while his left knee had grinding. The examiner assessed severe osteoarthritis of the left knee with total knee replacement. The examiner opined that the Veteran's current left knee arthritis is not caused by or a result of his in-service complaint of knee pain and treatment. The examiner noted that it was 30 years between when the Veteran left service and when records show he was first treated for knee pain. He further noted that there was no documented injury to the right knee in service, making it likely that the Veteran's knee problems were caused by wear and tear on both knees from an etiology not associated with his service. Considering all of the evidence in this case, the Board finds service connection is not warranted for the Veteran's bilateral degenerative joint disease of the knees. There is conflicting evidence as to whether the Veteran had preexisting knee problems prior to his entry into service. The Veteran checked on his medical history report form on entry that he had a history of "trick" or locked knee. However, the Veteran's lower extremities were found normal at his entrance examination in February 1966. Only such conditions as recorded in examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. See 38 C.F.R. § 3.304(b) (2012); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Board finds that although the Veteran reported a history of "trick" or locked knee prior to service on the February 1966 report of medical history, pre-existing knee problems were not noted on the February 1966 entrance examination report, thus the Veteran is presumed to have been in sound condition at the time of entry to service. Therefore, the question for consideration is whether VA has rebutted the presumption of soundness by presenting clear and unmistakable evidence that (1) the Veteran's knee disability, if any, existed prior to service, and (2) the pre-existing knee disability was not aggravated by service. The Veteran testified before the DRO in March 2010 that he did not have knee problems prior to service. No other evidence addresses any preexisting knee problems prior to service. Therefore, the Board finds that it has not been shown by clear and unmistakable evidence that the Veteran has knee problems that pre-existed service. As such, the presumption of soundness is not rebutted, and the claim becomes one for service connection. See 38 U.S.C.A. § 1111; See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The evidence does not show the Veteran's degenerative joint disease of the knees was diagnosed in service or manifested to a compensable degree within one year following separation from service, so the Veteran is not entitled to service connection under 38 C.F.R. §§ 3.307, 3.309. Further, the Veteran is not entitled to service connection under 38 C.F.R. § 3.303(b) as a preponderance of the evidence does not suggest the Veteran's knee disability has been continuous since service. Although there is one report in service of left knee pain, the diagnosis was not degenerative joint disease but patella femoral syndrome. Further, physical therapy records indicate the Veteran's condition had improved and the Veteran subsequently reported no knee troubles for the remainder of service or on discharge and none were noted on his discharge examination. In the Veteran's discharge report the Veteran's himself provides highly probative evidence against his current claim, clearly indicating he had no problem with the knees when discharged, while citing other issues such as the fact that he wore glasses. Even if the Board were to accept the Veteran's statements regarding the problems with the service medical records, which provide evidence against his claim, the post-service medical records provide particularly negative evidence against this case. It is not until 30 years after service that the medical evidence of record reflects that the Veteran again sought treatment for knee pain, and those records do not convey a reported history of 30 years of knee pain. Rather, the first treatment record for knee pain, in 2004, states that the Veteran recently injured his left knee falling off of a ladder, totally undermining his statements that he had had problems with his knees since service (and that treatment for the knees prior to 2004 are simply not available). Subsequent records suggest that the Veteran's knee pain had progressed over several years rather than 30 years. The Board acknowledges the Veteran's report that he sought treatment for knee pain three to four years after leaving service but that the records of that treatment were no longer available. However, even if the Veteran's contention is accurate (which does not appear to be the case), an approximately 25 year gap remains where the Veteran sought no treatment for his knees despite medical records showing he was seen for other orthopedic issues in the 1990s. The Board finds the medical evidence does not support the Veteran's contention of continuous knee pain since service and a preponderance of the evidence is against such a finding, clearly indicating a problem associated with a post-service bilateral knee injury. The Veteran may still show entitlement to service connection by establishing a nexus between his current disability and service under 38 C.F.R. § 3.303(a). However, the Board finds a preponderance of the evidence weighs against service connection. Only one medical opinion as to a nexus between the Veteran's service and his currently diagnosed degenerative joint disease is in evidence. The April 2010 VA examiner opined that the Veteran's current left knee arthritis is not caused by or a result of his in-service complaint of knee pain and treatment. The examiner did not offer a specific opinion as to the right knee. However, the examiner noted no medical records reflect complaints of knee pain until 30 years after the Veteran left service. He further noted that there was no documented injury to the right knee in service, making it likely that the Veteran's knee problems were caused by wear and tear on both knees from an etiology not associated with his service. The Veteran offered a lay opinion as to etiology, contending that his knee troubles are related to his climbing electrical poles in service. While the Veteran is competent to report knee pain, he is not competent to opine as to the etiology of degenerative joint disease as it is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, the Veteran does not have the education, training and experience to offer an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has considered the Veteran's statements as well as the medical evidence, as discussed above, but finds that a preponderance of the evidence is against the Veteran's claim for service connection. The Board finds that the service medical records provide some evidence against these claims, the post-service treatment records provide significant evidence against these claims, and the VA examination report provides limited, but significant, more evidence against these claims, outweighing the Veteran's statements, which are not always consistent with the record (his statements that he did not have problem with his knee prior to service is not consistent with the pre-induction history, in which he noted a "trick" or locked knee, and his statements regarding knee pain since service are simply not consistent with the post-service treatment records). As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2008. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection for his bilateral knee disability and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran also submitted statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in April 2010. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. Although the examiner did not offer an opinion as to the etiology of the Veteran's right knee disability, the Board finds the examination that was provided is adequate. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, although service treatment records contain evidence of a left knee injury in service, they do not include any mention of right knee injury. The only evidence that the Veteran's right knee disability is related to service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Regardless, the examiner did, in explaining his rationale for his opinion regarding the Veteran's left knee disability, state that he found it "likely that the Veteran's knee problems were caused by wear and tear on both knees from an etiology not associated with his service time" which addresses the issues before the Board. Based on the forgoing, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio, 16 Vet. App. 183. ORDER Service connection for degenerative joint disease of the left knee post total knee arthroplasty is denied. Service connection for degenerative joint disease of the right knee post total knee arthroplasty is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs