Citation Nr: 1319011 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-17 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to August 1975 and from August 1990 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the previously denied claim for a left knee disability. The Veteran testified before the Board at a hearing at the RO in May 2012. In August 2012, the Board reopened the claim and remanded it for further development. FINDING OF FACT The Veteran's left knee disability has not been shown to be causally or etiologically related to any disease, injury, or incident during service, arthritis did not manifest within the first post-service year, and the left knee disability has not been shown to be caused or aggravated by the service-connected right knee disability. CONCLUSION OF LAW A left knee disability was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have so incurred, and the left knee disability was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2008 letter, sent prior to the initial December 2008 rating decision, advised the Veteran of the evidence and information necessary to substantiate his claim for service connection, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the October 2008 letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Additionally, that notice informed the Veteran of the elements of secondary service connection (i.e. caused or aggravated by his right knee disability). Relevant to the duty to assist, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file. The Veteran has also been afforded a VA examination in January 2013, with an addendum obtained in March 2013, in order to adjudicate his service connection claim. The Board finds the examination and opinions are adequate in order to determine the etiology of his left knee disability, as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's service connection claim and no further examination is necessary. The appeal was remanded in August 2012 in order to obtain VA treatment records from specific VA doctors and to afford the Veteran with a VA examination. The RO contacted the physicians and reported to the Veteran that there were no further medical opinions or records to obtain in support of his claims. The Veteran stated that he had no further records to submit. Moreover, he was provided with a VA examination, as described above. Thus, there has been substantial compliance with respect to the remand directive. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal and inquired as to any outstanding evidence. And, the Veteran volunteered his treatment history and symptoms of his left knee disability which he felt was related to his right knee disability, thus fully describing the nature and severity of his knee disability. He indicated that all of his treatment had been at VA facilities. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) . Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or by evidence of continuity of symptomatology. Arthritis is a presumptive disease listed under 38 C.F.R. § 3.307, 3.309. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that his left knee disability, osteoarthritis, was caused or aggravated by his service-connected right knee disability due to many years of favoring his left knee due to right knee pain. He contends that when evacuating from Hurricane Katrina, he placed so much weight on the knees, especially the left knee, that both knees gave out and he had to crawl up and down stairs. He contends that he has experienced left knee pain ever since that time. Service treatment records are negative for any indication of left knee pain or problems; instead, they document his right knee injury without any findings related to the left knee. Post-service treatment records reflect that in February 1994, x-ray of the left knee was normal. In April 1998, an x-ray of the left knee showed mild degenerative joint disease. On May 2002 VA examination, after physically examining the Veteran, a VA examiner opined that the Veteran's left knee disability, minimal osteoarthritis, was not secondary to his right knee disability but was rather representative of the same arthritic process. The degenerative process was more balanced in the right knee due to the chronic ligamentous laxity that had been present for many years. The left knee disability was due to the same degenerative process but was just at a different stage. VA treatment records reflect that in December 2005, the Veteran reported that he had stumbled down some stairs during the hurricane evacuation and twisted his left knee and had some left knee pain. An April 2006 x-ray of the left knee showed "medial joint space narrowing with small marginal osteophytes to moderate effusion." The impression was osteoarthritis of the left knee. On April 2006 VA examination, the Veteran's right knee disability was diagnosed as total knee replacement, right knee. The Veteran reported that pain came and went in his left knee. There was no locking or instability. He had flare-ups with a change in the weather. He denied that he had injured his left knee since service. However, his treatment records documents that in December 2005, he had twisted and injured his left knee during a hurricane evacuation. After physically examining the Veteran and reviewing the claims file, the examiner opined that the Veteran had age acquired osteoarthritis of the left knee. He had injured the knee in 2005 which had resulted in his current pain. The left knee disability was not due to his right knee disability. On January 2013 VA examination, the Veteran reported having intermittent swelling, clicking, and popping of the left knee. He used a neoprene brace which helped. He reported that his right knee had bowed for many years prior to his knee replacement surgery which he felt contributed to his left knee arthritis. After physically examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran's left knee disability was proximately due to or the result of his right knee disability. The examiner explained that arthritis in one joint did not cause arthritis in the opposite limb, with few exceptions. There was no medical evidence to suggest that an arthritic knee with normal gait or a mild to moderate limp would cause arthritis in another joint. Instead, there would have to be severe muscle or nerve damage to cause a significant limp over a prolonged period of time, or a leg length discrepancy greater than four or five centimeters. None of those factors were present in the current case. The examiner included medical literature concerning that topic which stated that despite that many lay people felt that stress on one leg could produce symptoms in the other, there was no clear scientific basis for that reasoning. The evidence indicated that an injury in one extremity rarely caused a major problem in the opposite or uninjured extremity. The article described research to show that unless there was significant leg length discrepancy, the research did not demonstrate that the injured leg would cause a disability in the noninjured, favored leg. The examiner stated that, therefore, there was no evidence of aggravation in this case, either as due to the right leg disability or military service. In March 2013, an addendum opinion was received which stated that it was less likely than not that the Veteran left knee disability was caused or aggravated by his service, stating that there was a onetime complaint of bilateral knee pain in October 1970 but otherwise no indication of complaints, evaluation, or treatment in service or for many years following service. Additionally, there was no evidence of arthritis within one year of either period of service. In this case, the Board finds that service connection for a left knee disability is not warranted on a direct or secondary basis. First, there was no indication of a left knee disability in service such that there is no indication of a chronic in-service disability. Next, the medical evidence is negative for a left knee disability, or left knee symptoms, for many years following service, indicating a lack of continuity of symptomatology. In that regard, a prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The first indication of a left knee disability is not until approximately eight years following service discharge. The Veteran has not contended otherwise. Four years following discharge in 1994, an x-ray of the left knee was normal. Thus, the post-service evidence lacks a continuity of symptomatology. It follows that there was also no indication of left knee arthritis within one year following service discharge, therefore presumptive service connection is not warranted for left knee arthritis. Finally, the competent medical evidence, the March 2013 VA medical opinion, weighs against the claim, as the examiner found no indication that the left knee disability began in service. Accordingly, service connection for a left knee disability on a direct basis is not warranted. Next, the Board finds that service connection for a left knee disability is not warranted on a secondary basis. To that extent, although the Veteran states that favoring his left knee for many years and trying to evacuate from hurricane Katrina caused or aggravated his left knee arthritis, the three VA medical opinions find against his claim and the most recent opinion, in 2013, specifically refutes that contention with citations to current medical literature. The January 2013 VA examiner explained that the medical literature only supported a finding of causation or aggravation in a few isolated instances, none of which were displayed by the Veteran. Otherwise, there was no objective evidence to support a finding that the right knee disability would cause or aggravate the left knee arthritis. That opinion comports with the other two previous VA opinions which also found that the Veteran's left knee disability was its own separate arthritic process that was unrelated to his right knee disability. Significantly, there is no medical evidence to support the Veteran's claim. Therefore, in light of the three VA medical opinions that find against the Veteran's claim, and giving specific weight to the 2013 opinion which found no indication of causation or aggravation of the left knee disability, the evidence weighs against the claim and it must be denied. The Board has considered the Veteran's and his families contention that a relationship exists between his current left knee disability, his service, and his service-connected right knee disability. Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's left knee disability and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his in-service symptoms and current left knee pain and problems, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has offered only conclusory statements regarding the relationship between his left knee disability and his service and service-connected right knee disability, such as that in favoring his right knee he has experienced left knee pain. In contrast, the VA examiners took into consideration all the relevant facts in providing an opinion, to include the type of the Veteran's in-service complaints and diagnoses, the post-service type and onset of left knee pain, as well as the current nature of his left knee disability in relation to his right knee disability. The Board places the greatest weight on the VA opinions, as described above, finding that those opinions outweigh the Veteran's lay contentions. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left knee disability. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left knee disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs