Citation Nr: 1319938 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 08-24 023 ) 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 disability, to include as secondary to the Veteran's service-connected residuals of lumbar spine fusion. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a November 2007 rating decision, the RO denied a TDIU. In a January 2009 rating decision, the RO denied service connection for right knee disability. This appeal was previously before the Board in June 2010 and February 2012, when the issues were remanded for further development. The case is once again before the Board. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The right knee strain during service was acute and transitory, arthritis was not shown during the year following discharge from service, and the most probative evidence indicates the Veteran's current right knee disability is not related to service or the Veteran's service-connected low back disability. CONCLUSION OF LAW The criteria for service connection for a right knee disability, to include as secondary to the Veteran's service-connected residuals of lumbar spine fusion, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that through a VCAA letter dated in September 2008, prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes VA treatment records, VA examination reports, private treatment records, service treatment records, and lay evidence. The Board also notes that actions requested in the prior remands have been undertaken. The issues were remanded for further development by the Board in June 2010 and February 2012 to obtain Social Security Administration records and to obtain a new nexus opinion regarding the Veteran's right knee. The records were obtained and associated with the claims file. In March 2012, a VA examiner provided a nexus opinion. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ asked specific questions directed at identifying information and evidence pertinent to the requirements for establishing service connection. Moreover, the Veteran volunteered his treatment history and his symptoms since service. Neither the Veteran nor his representative has 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. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran testified as to the pertinent elements. As such, the Board finds that the Veteran is not prejudiced by a decision at this time, and no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be established 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. 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b) (2012). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the record. 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 appellant 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). The Veteran contends that he has a right knee disability that is causally or etiologically related to his service-connected lumbar spine fusion. Service treatment records dated in October 1978, shortly following his entrance on active duty, show complaints of right knee tenderness and swelling lasting two years. The examiner noted the Veteran's complaint of occasional pain and he performed a physical examination that revealed full range of motion, no edema or discoloration, and no distress. He diagnosed a possible strain. In January 1979, the Veteran again reported right knee pain for one and a half weeks. He noted an injury while water skiing. The examiner found no edema or discoloration, no distress, and full range of motion. X-rays were within normal limits. He diagnosed knee pain and muscle pain. A March 1979 record shows a complaint of right knee pain lasting two weeks. The examiner noted no discoloration, swelling, or crepitus, but he did find tenderness and a little laxity. Range of motion was within normal limits. He diagnosed knee strain. On the October 1979 separation report of medical history, the Veteran denied having a trick or locked knee; bone, joint, or other deformity; or arthritis, rheumatism, or bursitis. On the October 1979 discharge report of medical examination, the examiner found the Veteran's lower extremities to be clinically normal. Post-service, a July 2005 private treatment record showed complaints of pain and popping in the knee. An MRI was performed demonstrating a meniscal tear. The Veteran underwent knee surgery for a right knee medial meniscal tear with chondromalacia of the mediofemoral condyle and of the patella. The Veteran received a second surgery in 2008. In April 2008, the Veteran reported that he felt his altered gait from his low back is injuring his right knee. The examiner noted a sort of sideways gait that is putting stress on the right knee. He diagnosed degenerative arthritis or arthropathy of the right knee secondary to stress. A July 2009, a VA physician opined that the Veteran's service-connected low back pain makes him limp, which will certainly aggravate the right knee degenerative disease. The Veteran was afforded a VA examination in October 2009. The examiner noted the Veteran's in-service complaints of knee pain and diagnoses of right knee strain. He also reviewed the Veteran's VA and private treatment records. At the time of the examination, the Veteran reported that he developed right knee pain in 2005. The examiner performed a physical examination and reviewed radiological findings. He then diagnosed status post right meniscus surgery and decreased right knee range of motion. The examiner opined that it is less likely as not that the Veteran's claimed right knee disability is secondary to his injury in service or to his service-connected chronic low back pain. The examiner noted no medical relationship between a knee strain in 1978 and 1979 and a meniscus tear in 2005 and 2008. The Veteran noted no known cause for the original meniscus injury in 2005. The examiner also found no medical relationship between chronic lumbar pain and a meniscus injury. During the March 2010 hearing before the Board, the Veteran reported that he limped since his back injury in service. He also reported a knee injury during service; however, he testified that he first noticed a problem with his right knee about twenty years after service. The Veteran was afforded another VA examination in October 2010. The Veteran reported right knee pain beginning five years prior. He was diagnosed with a torn meniscus requiring surgery. The examiner performed a physical examination and opined that the Veteran's right knee disability is not secondary to or aggravated by his lumbar condition. He found no consensus in the medical literature that a lumbar fusion aggravates a knee and certainly no medical evidence listing a lumbar fusion as an etiology for a torn meniscus. The Veteran attended a third VA examination in March 2012. The Veteran reported that he started to experience right knee pain 10 years after discharge from service. He denied any right knee injury or problem during service. The examiner found that the Veteran's right knee disability was less likely than not proximately due to or the result of the Veteran's service-connected disability. The examiner noted that he would not expect meniscal pathology from back pain and that a nexus between his right knee meniscal tears and his abnormal gait secondary to his lumbar spine disability is not supported by medical literature. He also found that there would be no nexus based on aggravation of his non-service connected right knee pathology from his lumbar spine for similar reasons. The examiner subsequently reviewed the Veteran's claims file and found no need for further comments. The Board acknowledges the July 2009 VA physician's statement that the Veteran's service-connected low back pain makes him limp, which will certainly aggravate the right knee degenerative disease. Such statement, however, provides no rationale for the opinion, does not reflect claims file review, and did not address the prior right knee surgeries with respect to current knee complaints. Moreover, multiple medical opinions of record note no connection between the right knee and the low back. In any event, the Board finds the opinions of the VA examiners more probative than the July 2009 statement. The VA examiners reviewed the Veteran's claims file and determined that the Veteran's right knee disability is less likely than not proximately due to or the result of the Veteran's lumbar spine disability. They specifically noted the lack of medical literature connecting any such disabilities, specifically when the right knee disability is due to a meniscus tear. The VA examiners were fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, they provided articulated opinions that included a reasoned analysis. Therefore, the Board finds that the examiners' opinions to be of significantly more probative value than the Veteran's lay assertions and the July 2009 statement. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). While the Veteran alleges that his current right knee disability is due to his lumbar spine, the Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event or disability and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, although the Veteran is certainly competent to testify as to symptoms, the question as to the etiology of his right knee disability is a matter requiring medical expertise to determine. Indeed, right knee pathology may occur due to multiple causes, and such question is one typically determined by persons with medical training. Thus, on this point, the Board finds the opinions of the VA examiners to be more probative than the Veteran's lay assertion as to the cause of his right knee disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In sum, the most probative evidence indicates the Veteran's current right knee disability is not related to his right knee strain during service, and there is no evidence of arthritis of the right knee within one year following discharge from service. Moreover, the most probative evidence indicates that the Veteran's right knee disability is not related to or permanently worsened by his lumbar spine fusion. Accordingly, the preponderance of the evidence is against the claim, and service connection for a right knee disability is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a right knee disability, to include as secondary to the Veteran's service-connected residuals of lumbar spine fusion, is denied. REMAND The Veteran has also appealed the denial of TDIU. During the pendency of the appeal, service connection was granted for a psychiatric disability as secondary to his service-connected lumbar spine fusion, with a 30 percent evaluation assigned effective July 29, 2008. Such raises the Veteran's combined evaluation from 40 percent as of February 1, 2008 to 60 percent as of July 29, 2008. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Here, the Veteran is service connected for lumbar fusion (20 percent) and has been awarded service connection for sciatica of the right lower extremity (10 percent), radiculopathy of the left lower extremity (10 percent) and dysthymic disorder (30 percent) all as secondary to the lumbar spine fusion. Under 38 C.F.R. § 3.310, when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Thus, these four disabilities constitute a "single" disability for TDIU purposes. The evaluations of these disabilities combine to a 60 percent rating, to include the bilateral factor, pursuant to 38 C.F.R. §§ 4.25 and 4.26. Thus, as of July 29, 2008, the Veteran has a "single" disability rated at 60 percent and meets the criteria for a TDIU. In light of the above, remand is necessary. The Veteran was last examined for his psychiatric disability approximately five years ago. Thus, the Board finds that a new VA examination is necessary regarding his psychiatric disability to include obtaining an opinion as to whether this disability, when considered with his lumbar spine fusion, sciatica and radiculopathy, render the Veteran unemployable. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination for the purpose of ascertaining the impact of the Veteran's service-connected dysthymic disorder on his occupational functioning. Following review of the claims file, to include the July 2011 VA examination report concerning the Veteran's physical disabilities, and examination of the Veteran, the examiner should provide an opinion as to whether the Veteran's dysthymic disorder, when considered with the effects of his service connected physical disabilities, render the Veteran unable to obtain or maintain gainful employment, without regard to his age or nonservice connected disabilities. The examiner should provide the rationale for the conclusion reached. 2. After the above has been completed to the extent possible, readjudicate the appeal, to include consideration of whether the Veteran is entitled to TDIU on an extraschedular basis prior to July 29, 2008. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide an appropriate period to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs