Citation Nr: 1319959 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-34 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service with the Army from February 1970 until January 1972. He also had service in the Army Reserve National Guard, with active duty from January 2004 until February 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010 and January 2013, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran incurred or aggravated a right knee disability during active duty. CONCLUSION OF LAW A right knee disability, diagnosed as degenerative joint disease, was not incurred during or aggravated by active service, and may not be presumed to have been incurred during active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1133, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2012). Proper VCAA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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). Notice was provided in correspondence dated in April 2005 and August 2007. The claim was subsequently readjudicated, most recently in a March 2013 SSOC. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case is sufficient to cure a timing defect). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of his claim. The Veteran's service treatment records have been obtained to the extent possible. VA was unable to obtain treatment records from the Veteran's period of service between 2004 and 2005. The Veteran was properly informed of VA's inability to obtain these records, and he submitted some records from that period of service. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA also obtained VA treatment records. VA has contacted the Veteran and the proper facilities to determine the Veteran's periods of active duty for training and inactive duty training. The Board notes that the training the Veteran was called upon to complete, excluding the period from January 2004 to February 2005, involved state duty and not federal duty. Thus, such training would not apply to the Veteran's claims for service connection. Ramos v. Shinseki, 2013 WL 29786 (C.A.Fed.) (January 2013) citing Perpich v. Dep't. of Defense, 496 U.S. 334, 345 (1990); Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003). VA also contacted the Veteran as to where he had received VA treatment, and it obtained the VA treatment records from the Tampa and Bay Pines facilities. It provided the Veteran with an examination and obtained a medical opinion in February 2013. The Board finds that the examiner addressed the necessary clinical findings and provided opinions on the disability being decided herein. Thus, the examination provided is adequate for rating purposes. Lastly, the RO readjudicated the claim in March 2013. The Board finds that with respect to the claim being decided, the RO has substantially complied with the Board's September 2010 and January 2013 remand instructions. The Veteran has not indicated that there are any other outstanding records that need to be obtained. Therefore, VA may proceed with the consideration of his claim. Analysis Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, including arthritis (degenerative joint disease), service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The relevant law provides that at the time of the service entrance examinations, those persons entering military service are presumed to be in sound physical and mental condition, except for those disorders, disease, or other "infirmities" that are noted on their service entrance physical examination. 38 U.S.C.A. § 1111 (West 2002). In VAOGCPREC 3-2003, VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). For those disorders that preexisted service and were worsened or "aggravated" during such service, a Veteran may obtain service connection. 38 U.S.C.A. §§ 1110, 1153. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where pre-service disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). 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) . The Veteran contends that he incurred or aggravated a right knee disability when he twisted it while working on a helicopter during his second period of active duty. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right knee disability, diagnosed as degenerative joint disease, either on an incurrence basis or as due to aggravation. In so finding, the Board first finds that the presumption of soundness applies to the Veteran's first period of active duty. 38 U.S.C.A. § 1111. The service treatment records from this period of active duty are negative for complaints, symptoms, findings or diagnoses related to the right knee. The record is thereafter similarly negative for any pertinent complaints for many years. The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). An August 1998 VA X-ray report reflects degenerative joint disease of the right knee. A June 2001 VA x-ray report reflects right knee osteoarthritic degenerative changes with narrowing of the patellofemoral articulation and presence of a loose body in the anterior knee compartment. The Veteran underwent right knee arthroscopy and debridement in September 2001. August 2003 VA x-rays of the right knee show no evidence of acute bony injury. Small spurs projected from the margins of the articular surfaces of the right knee. Moderate sized spurs projected from the anterior margin of the patella. There was narrowing of the femoropatellar joint space. It was noted there was a possibility of a loose body within the joint space of the right knee. There was some osteoporosis of the visualized bony structures. The impression was degenerative changes with narrowing of the femoropatellar joint space. The Board finds that the foregoing VA medical records fail to support service connection for a right knee disability because they fail to link the current diagnoses to the Veteran's first period of service. The Veteran's available service treatment records from his second period of active duty reflect that he sought treatment for right knee pain in June 2004. There was no swelling, joint effusion or instability. Lachman's sign was negative. The Veteran was told to not run, and to walk at his own pace. This report provides no evidence that there was an increase in disability of the Veteran's preexisting right knee disability during this period of service. The remainder of the available treatment records from this period of active duty are negative for any complaints, symptoms, findings or diagnoses related to a right knee injury. The Board finds that the foregoing VA treatment records, and the June 2004 service treatment record, constitute clear and unmistakable evidence that the Veteran's right knee degenerative joint disease existed prior to his second period of service and was not aggravated by that service. See VAOGCPREC 3-2003. See also Wagner, supra, and Cotant, supra. A June 2007 VA MRI of the right knee resulted in impressions of tricompartmental osteoarthritis with high-grade chondromalacia in the medial and patellofemoral compartments and a degenerative tear of the medial meniscus. A December 2010 VA examination report provides that current physical examination of the Veteran's right knee was consistent with current radiographic findings of osteoarthritis. The examiner provided a negative nexus opinion that was found by the Board's January 2013 remand to be inadequate. The report of the February 2013 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The resulting diagnosis was right knee tricompartmental degenerative joint disease with meniscal tear, per imaging. The examiner stated that it would be only with resort to mere speculation to opine whether or not the Veteran's right knee tricompartmental degenerative joint disease with meniscus degeneration/tear was caused or aggravated to any degree by any period of his military service. The examiner also stated that the service treatment records from the Veteran's Vietnam-era service were silent for any right knee symptoms, treatments or diagnoses. The service treatment records from the Veteran's 2004-2005 deployment document right knee pain consistent with the preexisting right knee degenerative joint disease as documented in the records. The examiner stated that there was no current objective evidence that the additional instances of documented right knee pain/injury were more than acute and transitory events, or that they represented more than the expected natural progression of the Veteran's preexisting right knee degenerative joint disease. The examiner also stated that there was no current objective evidence that the Veteran's current right knee condition (right knee tricompartmental degenerative joint disease with meniscal tear) was caused or aggravated to any degree by his military service, or that his preexisting right knee degenerative joint disease was aggravated beyond its expected natural progression to any degree by his military service of 2004-2005. The Board recognizes that the examiner's initial statement is that it would be speculative to opine whether or not the Veteran's right knee disability was caused or aggravated by active duty. Nevertheless, the examiner went on to provide a detailed and thorough medical opinion against the Veteran's claim. Despite the examiner's initial statement, when viewed in its entirety his opinion clearly stands for the proposition that the Veteran's active duty did not cause or aggravate the Veteran's right knee disability. The Board finds that this medical opinion constitutes probative evidence against the Veteran's claim. It is based on current examination results and a review of the medical record. It is based on the Veteran's past medical history and current physical findings, to which the report and the opinion refer in detail. This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board finds it significant that there is no medical evidence to the contrary of the February 2013 VA opinion. In fact, the post-service evidence is negative for any evidence that either period of the Veteran's active duty caused or aggravated his right knee disability. The Board acknowledges the assertions by the Veteran in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. The Board finds that his assertions are credible. However, the Veteran's contentions that he incurred or aggravated a right knee disability during active duty do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's active duty caused or aggravated a right knee disability) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, 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, supra. The Veteran is competent to state that he observed relevant symptoms during or after service. The Board finds him to be credible in this regard. However, he is not competent to attribute the coincidence of symptoms occurring during or after service as establishing the diagnosis and etiology of his current symptoms. As such, the Board finds that the Veteran's assertions (that his second period of active duty caused or aggravated a right knee disability) are outweighed by the February 2013 VA medical opinion (that neither of the Veteran's periods of active duty caused or aggravated the Veteran's right knee disability). In sum, the evidence demonstrates that the Veteran is not entitled to service connection for a right knee disability, diagnosed as degenerative joint disease. ORDER Service connection for a right knee disability, diagnosed as degenerative joint disease, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs