Citation Nr: 1320315 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 08-34 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to August 2001. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision issued in May 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2011, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO). He also provided testimony before the undersigned Veterans Law Judge sitting at the RO in April 2012. Transcripts of both hearings have been associated with the Veteran's claims file. In October 2012 the Board remanded the case for additional development and it now returns for further appellate review. As will be discussed herein, the requested development has been completed such that no further action is necessary in this regard. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of VA treatment records from the Birmingham, Alabama, VA Medical Center, which were considered by the agency of original jurisdiction (AOJ) in the February 2013 supplemental statement of the case. FINDING OF FACT A right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW A right knee disorder was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1) . In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a December 2005 letter, sent prior to the initial May 2007 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, a March 2006 letter, which is not of record but which the Veteran expressly acknowledged receipt of in an April 2006 letter to VA, informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Moreover, while the Dingess/Hartman notification letter is not of record, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, as the Board concludes herein that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disorder, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Relevant to the duty to assist, the Veteran's service treatment records, as well as private and VA treatment records, have been obtained and considered. Additionally, the Veteran has not reported, and neither does the evidence of record show, that he is in receipt of Social Security Administration (SSA) disability benefits for his claimed disabilities. Absent any evidence showing that the Veteran is in receipt of said benefits for his claimed right knee disorder, VA need not attempt to obtain his SSA records. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. In October 2011 the Board remanded the case in order for the AOJ to obtain any outstanding VA treatment records and private treatment records. The AOJ obtained outstanding VA treatment records and associated them with the Veteran's claims file. The AOJ contacted the Veteran by an October 2012 letter requesting that he provide information and authorization to obtain any outstanding private treatment records; however, the Veteran did not respond to the October 2012 letter. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). The Veteran was afforded a VA examination in order to adjudicate his claim of entitlement to service connection for a right knee disorder in September 2008. Additionally, the Board remanded the case in October 2011 so as to obtain an addendum opinion, which was rendered in October 2012. In a June 2013 Post-Remand Brief, the Veteran's representative essentially alleged that the opinion is insufficient for adjudication purposes as "the [e]xaminer did not adequately disassociate [the] Veteran's in-service injuries and complaints from his current symptomatologies and diagnoses. He only depends on documented histories." However, the Board finds that the October 2012 VA addendum opinion was based, in part, on the Veteran's statements as the VA examiner stated that "I have reviewed the statements from the [V]eteran." In addition, the VA addendum opinion discussed in detail the Veteran's in-service injury, the current state of his right knee, the history of the disease, his previous examination of the Veteran, and the Veteran's age and other contributing factors. Therefore, in contrast to the Veteran's representative's contentions, the VA examiner offered an etiological opinion and based his conclusions on an interview with the Veteran, a review of the record, and a full examination. Moreover, he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). As such, the Board finds that the September 2008 VA examination and the October 2012 VA addendum opinion are adequate and the opinions proffered by the VA examiner are sufficient to assist VA in deciding the claim on appeal. As indicated previously, the Board remanded the case for additional development in October 2012. As discussed in the preceding paragraphs, the Veteran was provided with an opportunity to identify any additional treatment records and an addendum opinion regarding the etiology of his right knee disorder was obtained in October 2012. Therefore, the Board finds that the AOJ has substantially complied with the October 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Additionally, in July 2011 and April 2012, the Veteran was provided an opportunity to set forth his contentions during separate hearings before a DRO and the undersigned Veterans Law Judge, respectively. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the July 2011 and April 2012 hearings, the DRO and undersigned enumerated the issue on appeal. Also, information was solicited regarding the Veteran's in-service experiences he alleges resulted in his right knee disorder, the type and onset of symptoms, and his contention that his military service caused his disorder. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the Board remanded the case in order to obtain additional evidence, to include an addendum opinion addressing the etiology of the Veteran's right knee disorder. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the DRO and undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. 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 Veteran); 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 Veteran 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, the Veteran 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)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At his July 2011 hearing before the DRO, the Veteran asserted that he started having problems with his right knee upon injuring it in a military exercise in Berlin, Germany, in June 1981. See transcript, p. 5. He described the exercise as an "in-city mount...assault." Id., p. 6. The Veteran reported that he was sent to a medical facility for treatment, where he was given some painkillers and some time off and/or light duty. Id., p. 6. He stated that he went back to sick call several other times for his right knee injury. Id., p. 6. The Veteran asserted that his doctor has told him "that my right knee is just aggravated by other medical symptoms that I have because it's weaker. It's to the point of strain and stress." Id., p. 6. The Veteran also stated that his right knee has tested negative for arthritis. Id., p. 7. At his April 2012 hearing before the undersigned, the Veteran asserted that he injured his right knee in Berlin, Germany in 1981 "on a military exercise running, and I tripped and fell, and slammed it pretty good." See transcript, p. 13. The Veteran reported that he was sent to the U.S. Army Hospital Berlin, diagnosed with a right knee strain, and given painkillers and 48 hours of rest. Id., p. 13. He denied any history of trauma to his right knee prior to service. Id., pp. 14-15. The Veteran stated that he now has muscle and joint pain which give him problems with getting up and down. Id., p. 14. He further asserted that he has always had some problems with his right knee since the injury. Id., p. 17. When asked whether he feels that his fibromyalgia caused or aggravated his claimed right knee disorder, the Veteran responded that he feels that it did not, but that "the [right knee] injury aggravates the fibromyalgia." Id., p. 15. The Veteran's service treatment records include a June 1981 record in which he reported falling on his knees while running during a training exercise. The clinician administered an x-ray of the Veteran's right knee and diagnosed a right knee strain. In January 1997, a clinician diagnosed the Veteran with arthralgia of the knees. In Reports of Medical Examination dated February 1978, December 1999, November 2000, May 2001, and July 2001, clinicians found that the Veteran's lower extremities and musculoskeletal system were normal. In a July 2001 Report of Medical History, the Veteran reported that his knees swell after running. After service, in May 2007, a private physician noted that the Veteran reported injuring his right knee in service. The physician found that the Veteran's right knee had lost 5 percent of full extension (compared to a 10 percent loss in his left knee). The physician also observed that there were minimal degenerative changes in both knees. The physician diagnosed the Veteran with osteoarthritis, multiple injuries, and possible seronegative arthritis. In June 2007, another private clinician noted that the Veteran reported having all-over joint pain and bilateral knee pain since about 1991. The clinician found crepitus on both knees, worse on the right, and diagnosed the Veteran with chronic musculoskeletal pain and bilateral knee pain and inflammation. VA provided the Veteran with a VA examination of his right knee in September 2008; the Veteran's claims file and medical records were reviewed. The examiner diagnosed the Veteran with right knee osteoarthritis and opined that it was less likely than not related to the treatment that he received during his active service for his right knee strain because: There was no specific [sic] injury in the service. He was treated and diagnosed with a right knee strain. On my exam and also the history- he no longer has a right knee strain but has early osteoarthritis of his right knee. But note the plain film does not confirm this at this time. A knee strain does not predispose someone to osteoarthritis. Age, obesity, specific cartilage defects and genetics are the predisposing factors for this type of arthritis. In October 2012 the Board remanded the case so as to obtain an addendum opinion from the September 2008 VA examiner. Such was obtained later in October 2012, at which time the VA examiner indicated that he reviewed the Veteran's 1981 service treatment records showing the fall on his knees and the Veteran's statements. He retracted his prior statement that there was no specific injury to the right knee in service. He stated that the Veteran's current right knee condition was less likely as not (less than 50%) related to, or caused by, his time in the service. He stated at the time of the examination in 2008, he diagnosed the Veteran with very, very mild arthritis and that it was extremely mild and barely detectable. He stated that, if service, including the injury, had been the cause then the severity of the arthritis in 2008 would have been much worse. The VA examiner stated that the type of arthritis involved is degenerative arthritis (osteoarthritis) and not rheumatoid arthritis; the latter is the type of arthritis that was not found when the Veteran was worked up for fibromyalgia. Rheumatoid arthritis is diagnosed with clinical, imaging and lab criteria while osteoarthritis is found based on examination and imaging only. The examiner agreed that the Veteran did not have rheumatoid arthritis but had osteoarthritis. He stated that there was no evidence of any osteoarthritis in service and the type of injury in 1981 would not have been significant enough to cause osteoarthritis. He also stated that the term arthralgia is not the same as arthritis. Specifically, arthralgia refers to pain in the joints but does not identify the cause. He opined that, in this case, arthralgia was likely related to the Veteran's fibromyalgia and not from arthritis. He stated that advancing age, obesity (the Veteran's BMI was greater than 30), cartilage defects, and genetics are the risk factors for osteoarthritis. The September 2008/October 2012 VA examiner's opinion is the only medical opinion of record. In this regard, while the May 2007 and June 2007 private physicians noted the Veteran's report of injuring his right knee during service and that he had bilateral knee pain since 1991, respectively, neither offered an etiological opinion. Moreover, the Board accords great probative weight to the VA examiner's opinion. In this regard, competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). As the aforementioned VA examiner is so qualified, the medical opinion constitutes competent medical evidence. The Board further finds that the VA examiner's medical findings are credible, based on their internal consistency and the VA examiner's duty to offer truthful opinions. Moreover, the examiner based his conclusions on an interview with the Veteran, a review of the record, and a full examination and offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves- Rodriguez, supra; Stefl, supra. Consequently, the Board assigns great probative value to the VA examiner's opinions. In regard to the Veteran's testimony, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lay evidence may also 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 a 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). The Board finds that the Veteran is not competent to provide an opinion linking his right knee disorder to service because such an etiological opinion is 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). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. The Board has also considered whether service connection is warranted for a right knee disorder on a presumptive basis. However, the record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his active duty service discharge in August 2001. Rather, the first diagnosis of arthritis of the right knee was made in May 2007. Moreover, to the extent that the Veteran has alleged a continuity of right knee symptomatology, i.e., pain, since service, the October 2012 VA examiner opined that such pain (arthrlagia) was related to the Veteran's fibromyalgia, rather than arthritis. Therefore, the Board finds that, as the probative evidence of record dissociates the Veteran's complaints of right knee pain from his arthritis, presumptive service connection is not warranted for a right knee disorder. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Therefore, based on the foregoing, the Board finds that service connection for a right knee disorder is not warranted. 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 right knee disorder. 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; Gilbert, supra. ORDER Service connection for a right knee disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs