Citation Nr: 1320190 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-08 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected residuals of a left ankle fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from October 1953 to September 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied service connection for a bilateral knee disability. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2008. A transcript of the hearing is of record. In October 2010, March 2011, November 2011, August 2012, and March 2013, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. In April 2013, the Veteran filed a claim for entitlement to a temporary total rating based on the need for convalescence following left knee replacement surgery. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and the Board does not have jurisdiction over it. It is therefore referred to the AOJ for the appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's bilateral knee disability, diagnosed as osteoarthritis of the right and left knees, is not etiologically related to active duty service or a service-connected disease or injury. CONCLUSION OF LAW A bilateral knee disability, diagnosed as osteoarthritis of the right and left knees, was not manifested within a year from active duty service, was not incurred or aggravated during service, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for a bilateral knee disability as it was incurred during active duty service due to injuries associated with numerous parachuting jumps. In the alternative, the Veteran contends that the service-connected residuals of a left knee ankle fracture caused or aggravated the knee disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). 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). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. Turning first to whether service connection is warranted on a direct basis, the Board notes that the record clearly establishes the presence of a current disability. In August 2009, a VA orthopedist at the Cleveland VA Medical Center (VAMC) diagnosed osteoarthritis of the right and left knees based on X-rays of the joints. The Veteran has continued to receive treatment for right and left knee pain throughout the claims period and in January 2013 underwent a left total knee replacement. A VA examiner also confirmed the presence of a bilateral knee disability in a November 2012 medical opinion. The Board therefore finds that a current disability is demonstrated. The Board also finds that the record establishes an in-service injury. Service records are negative for evidence of complaints or treatment pertaining to the knees, but document an incident in January 1955 when the Veteran fractured his left ankle after a parachute jump. Personnel records also show that the Veteran is in receipt of the Parachutist Badge. Thus, while there are no specific findings or complaints related to the Veteran's knees during service, the Board finds that the Veteran's service as a parachutist and documented injury due to jumps is sufficient to establish an in-service injury to the knees. With respect to whether the record demonstrates a nexus between the Veteran's current disability and in-service injury, service records do not indicate such a link. As noted above, no chronic knee conditions were noted in the service treatment records and the Veteran's lower extremities were normal upon examination for separation in September 1956 aside from some left ankle tenderness. The Veteran also specifically denied experiencing a "trick" or locked knee on a September 1956 report of medical history associated with the separation examination. There is also no medical evidence of arthritis of either knee until years after the Veteran's separation from service. The Veteran first complained of pain in the knees in August 2002, more than 45 years after service, when he was seen at the Cleveland VAMC with right knee pain and effusion. The first documented complaint of left knee pain dates from three years later in April 2005, when the Veteran presented with similar complaints to the left knee at a VA urgent care center. As discussed above, bilateral knee osteoarthritis was diagnosed by a VA orthopedist in August 2009. The absence of any clinical evidence for years after service weighs the evidence against a finding that the Veteran's bilateral knee osteoarthritis was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 for arthritis as a chronic disease is therefore precluded. There is also no competent medical evidence in support of the claim for direct service connection. None of the Veteran's VA physicians have linked the current knee disability to any incident of active duty service, and a VA examiner provided a medical opinion against direct service connection in a March 2011 VA examination report. Although the probative value of the medical opinion is lessened by the lack of a full rationale, the March 2011 VA examiner noted that service treatment records were negative for evidence of a specific injury to the knees. The Veteran also sustained a post-service injury to the left knee, falling down in the summer of 2010 and exacerbating his left knee pain. Service connection is possible for certain chronic disabilities, such as arthritis, under 38 C.F.R. § 3.309(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has not reported a history of continuous symptoms from his bilateral knee disability since active duty service. Despite attributing his knee problems to parachuting jumps during service, the Veteran testified in May 2008 that he did not have any specific problems with his knees during active duty. VA treatment records also document various statements from the Veteran dating the onset of knee pain to many years after service. In April 2005, while receiving treatment for left knee pain and effusion, the Veteran denied any previous trauma or episodes of knee pain. During a December 2011 rehabilitation therapy session, the Veteran also reported the gradual onset of knee pain 16 years ago (in approximately 1995), 40 years after discharge from military service. As the Veteran has not reported a continuity of symptoms since service, service connection under 38 C.F.R. § 3.309(b) is not warranted. The Board has also considered the Veteran's statements connecting his osteoarthritis of the right and left knees to active duty service. The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377 (lay persons not competent to diagnosis cancer). The Veteran is competent to testify as to observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. The competent evidence of record is therefore against a nexus between the Veteran's bilateral knee disability and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection on a direct basis. The Board must now determine whether service connection is warranted for the bilateral knee disability on a secondary basis. The Veteran contends that his service-connected residuals of a left ankle fracture have caused or aggravated his osteoarthritis of the knees. There is no competent evidence in support of service connection on a secondary basis and none of the Veteran's treating physicians at the VA have identified a link between the bilateral knee disability and the left ankle fracture. A VA examiner also provided an opinion against the claim for secondary service connection in a November 2012 report. The examiner noted that the Veteran's knee complaints began over 50 years after the left ankle fracture. There was also no medical evidence to support a chronic disability pattern or continuity of symptoms indicating a nexus between the knees and ankle. The November 2012 VA medical opinion was well-explained and based on a thorough and complete review of the Veteran's medical records and history. It is therefore entitled to substantive probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has also considered the statements of the Veteran regarding secondary service connection, but again notes that specific issue in this case, i.e. the etiology of an orthopedic disability, falls outside the realm of knowledge of a lay person. Jandreau, 429 F.3d at 1377. The Veteran is competent to report his current symptoms, such as knee pain, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed disability was decades after his separation from active duty service. In addition, there is no competent medical evidence that the Veteran's bilateral knee osteoarthritis is related to active duty service or the service-connected residuals of a left ankle fracture. The weight of the evidence is therefore against a nexus between the claimed disability and active duty service or a service-connected condition. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in May 2007 and October 2010 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the May 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice, specifically notice pertaining to secondary service connection, was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was readjudicated in the May 2013 SSOC. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran was examined by a VA examiner in March 2011 and the record contains a proper VA medical opinion addressing the secondary service connection aspect of the claim in November 2012. The Board notes that the record does not contain a fully probative medical opinion addressing the Veteran's contentions regarding service connection on a direct basis. However, the Board finds that such an opinion is not required by the duty to assist. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). In this case, there is no competent evidence of an association between the diagnosed osteoarthritis of the bilateral knees and active duty service. As noted above, the Veteran is not competent to provide evidence regarding the medical etiology of the claimed disability and no medical professional has linked his knee disabilities to service. Service treatment records are entirely negative for any specific complaints or treatment pertaining to the knees and there is no medical evidence of a chronic knee disability until more than 45 years after service. Thus, a VA medical opinion addressing service connection on a direct basis is not required by the duty to assist. VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment from the Cleveland VAMC dated through April 2013. VA also attempted to obtain records pertaining to the Veteran from the Social Security Administration (SSA). An April 2013 response from the SSA indicated that the Veteran's medical records had been destroyed. VA contacted the Veteran in an April 2013 letter and requested that he submit any SSA records in his possession. The Veteran responded with a May 2013 telephone call and reported that he received SSA compensation based on retirement and not disability. He also stated that he had no SSA records to submit. The Board therefore finds that there are no SSA records available for procurement that pertain to the current claim on appeal. The Board also finds that VA has complied with the remand orders of the Board. In response to the Board's remands, the Veteran received complete VCAA notice regarding his claim for service connection, including notice addressing his contentions regarding secondary service connection. VA also obtained additional records of treatment from the Cleveland VAMC dated through April 2013. The Veteran was provided a VA examination in March 2011 and an appropriate VA medical opinion was added to the record in November 2012. Attempts were made to obtain medical records from the SSA, but as noted above, such records were destroyed. The case was then readjudicated in May 2013. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected residuals of a left ankle fracture, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs