Citation Nr: 1320693 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 03-31 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee and leg condition, including as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran had active service from June 1963 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In April 2008 and August 2011, the Veteran testified at videoconference hearings before the undersigned Acting Veterans Law Judge. Transcripts of those proceedings are available and have been associated with the claims file. The issue on appeal first came before the Board in January 2009, at which time it was remanded for additional development. The issue was again remanded in February 2011, January 2012, and March 2013. The Board has reviewed the Veteran's physical claims folder and the Virtual VA electronic file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's current right knee and leg conditions were not manifest in service and are not otherwise causally related to service, and arthritis of the right knee or hip was not manifest within one year of separation. 2. The Veteran's right knee and leg condition was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for right knee and leg condition are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran notice by a letter dated in September 2003. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran a March 2006 correspondence that fully complied with Dingess. Both the initial notice in September 2003 and that required by Dingess were subsequent to the RO's initial adjudication. However, the notice timing error was cured by the RO's subsequent readjudication of the case. Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran in 2004, 2009, and January 2012; developed supplemental medical opinions in December 2012 and April 2013; and the Veteran twice gave testimony before the Board. The examinations and opinions are adequate as the record was reviewed, the Veteran was examined, and all medical opinions necessary were rendered. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's March 2012 remand by obtaining the medical opinion requested and readjudicating the claim. Accordingly, the duties to notify and assist have been met, and the Board may proceed with adjudication of the claim. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including degenerative arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a "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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities, like arthritis, listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. As the Veteran's claim was pending prior to the effective date of the revised § 3.310, the Board will consider the version in effect prior to October 10, 2006, as it is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Service connection is in effect for a right foot scar, rated as noncompensable. The Veteran has right knee and leg conditions, as reflected by a July 2002 VA medical record assessing osteoarthritis of the right knee; an April 2003 post-surgical diagnosis of right knee medial and lateral meniscus tear with loose bodies; a February 2004 medical report of the Veteran being post right total knee arthroplasty; and a December 2012 VA medical opinion noting a diagnosis of right hip degenerative joint disease. Service treatment records are negative for right knee or leg complaints, treatments, or diagnoses, and on service discharge examination in February 1968, the Veteran denied having or having had pertinent symptomatology and his clinical evaluation was normal. In May 1979, X-rays of the Veteran's right hip, right knee, right ankle and right foot were normal. On VA examination in May 1982, X-rays of the Veteran's right hip and right ankle and right foot were noted to be normal. A July 2002 VA medical record shows osteoarthritis of the Veteran's knees. In January 2003, a 1-year history of right knee pain was reported. On private medical evaluation in February 2004, the Veteran indicated that his right knee disorder was of gradual onset. On VA examination in June 2004, the examiner noted that the Veteran had injured the dorsum of his right foot in service and that it became infected, requiring surgical and long term antibiotic therapy. Presumably he was infected with osteomyelitis. The examiner determined that he eventually recovered from it and had no significant problems from it. On examination, he had a well-healed, nontender scar on the dorsum of his right foot. The diagnosis was history of suspected osteomyelitis of the right foot in 1963 with no significant residual. This right foot disorder was determined by the examiner to be unrelated to his right knee degenerative joint disease. On VA examinations in October 2009 and January 2012, the examiner reviewed the Veteran's claims folder and indicated that the Veteran's right knee total knee replacement, due to osteoarthritis, was not caused by or a result of active duty, as there had been no evidence regarding treatment in service, the Veteran had had a normal knee X-ray over 10 years after service separation, and there was no evidence of treatment for a knee problem until VA Medical Center treatment notes more than 30 years post-discharge. In October 2012, a VA examiner opined that the Veteran's right knee disability was less likely than not due to or the result of the Veteran's service-connected condition based on the same rationale. In December 2012, a VA examiner reviewed the claims folder and indicated that the Veteran's right knee and hip disorders were less likely than not related to or caused by his service or his service-connected right foot condition. The reasons were that the STRs did not reveal any medical evidence of knee or hip arthritis in service; medical data showed that knee and hip arthritis had their onset decades after service; and that there was a lack of grossly antalgic gait between the time in service and the onset of joint arthritis, making any possible transition from the foot condition "highly unlikely." The examiner indicated that the most likely etiologies for the Veteran's right leg condition was his advancing age, his obesity, and the physical nature of his post-service occupation. Medical treatise references were cited. In April 2013, a VA examiner indicated that the Veteran's right knee and hip conditions were less likely than not aggravated by his service-connected right foot condition. The reasons given were the same reasons provided in the December 2012 opinion. Based on the evidence, the Board concludes that the Veteran's current right knee and hip disorders were not manifest in service, that arthritis of the right knee or hip was not manifest to a degree of 10 percent within 1 year of separation, and that the current right knee and hip disorders are unrelated to service. The Board finds the opinions of the VA examiners with respect to these questions to be highly probative and persuasive as the examiners and opinion providers provided clear and thorough rationales for their opinions based on the evidence of record, lay statements from the Veteran, medical knowledge and medical literature. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (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). Further, with respect to service connection on a direct basis, the Board finds persuasive the fact that multiple medical professionals reached the same conclusions. As pointed out by nearly all the medical providers, the current disorders are not shown in service treatment records or until many years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Accordingly, service connection on a presumptive basis is not warranted. The Board also concludes that the Veteran's right knee and hip disorders were not caused or aggravated by his service-connected right foot scar. The medical professionals in December 2012 and April 2013 came to these conclusions after reviewing the claims folder and considering the Veteran's contentions. The reasons for the opinions were that medical data first showed the disorders at issue decades after service, and that there was a lack of grossly antalgic gait between the time in service and the onset of joint arthritis. The examiner felt that this made any possible transmission from the foot condition highly unlikely. In particular, the Board emphasizes that the December 2012 VA physician's explanation of rationale with citation to medical literature and treatise renders the opinion highly probative. The Veteran indicated during his hearings that a VA physician had indicated in 1976 that his right foot disorder had caused his right knee disorder. However, no medical evidence to this effect has been submitted, and there are written opinions of record considering the effect of the Veteran's service-connected right foot scar disorder on his right knee, and reaching the opposite conclusion. The only evidence in the record that suggests the Veteran's right knee and leg disorder is related to military service or service-connected disability is based on the Veteran's own lay statements. During the Veteran's August 2011 hearing, he testified as to continuity of right knee symptoms ever since he injured his right foot in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether or not his current right knee and leg disabilities were caused or aggravated by service or his service-connected foot disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). This is so because the knee and hip are complex joints, with internal mechanisms not readily observable to the naked or untrained eye. Further evidence that arthritis is an internal process not readily observable is the fact that it must be confirmed by x-ray evidence. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence lacks probative value. As explained by the December 2012 VA examiner, the changes in the Veteran's right knee and hip are most likely part of the normal aging process, his obesity, and the physical nature of his postservice occupation. With respect to his assertions of continuity, the preponderance of the evidence is against the claim on that basis as the Board finds more probative and persuasive the opinions of the medical professionals; the absence of any service treatment records reporting complaints of, or treatment for, knee or hip problems; the Veteran's February 1968 denial of pertinent symptomatology and the normal findings at that time; and the fact that there is no documentation of symptoms until years after service. Since the preponderance of the evidence indicates that the Veteran's current right knee and hip disorders were not manifest in service, and that arthritis of his right knee or hip was not manifest to a degree of 10 percent within 1 year of separation, and that his current right knee and hip disorders were not caused or aggravated by a service-connected disability, to include his right foot scar, service connection is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for right knee and leg condition is not warranted. The appeal is denied. ____________________________________________ M. CARYN GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs