Citation Nr: 1321636 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 08-20 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from May 12, 1976, to June 18, 1976. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal was previously remanded by the Board in February 2011 and June 2012 for further development. The matter is now ready for adjudication. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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 A bilateral knee disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW A bilateral knee disability 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, 1112, 1116, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A VCAA letter was sent to the Veteran in December 2005. The letter indicated the type of evidence and information needed to substantiate the Veteran's service connection claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. While the letter did not include information regarding disability ratings and an effective dates for the award of benefits, such is moot as the Board declines to award service connection herein. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, post-service private and VA treatment records and Social Security Administration records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In June 2012, a VA examination and opinion was obtained to address the nature and etiology of the Veteran's bilateral knee disability. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained is more than adequate. The VA examiner considered all of the pertinent evidence of record, to include his service treatment records, personal statements and history, and provided detailed rationale for the opinion stated. 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). Therefore, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Moreover, the RO/AMC substantially complied with the prior remand directives, to include requesting additional records and scheduling the above June 2012 examination. Accordingly, the Board finds that the prior remand orders have been substantially complied with. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and will proceed to a decision. II. Analysis The Veteran seeks service connection for a bilateral knee disability, which he attributes to his pes planus. (The Veteran was denied service connection for pes planus in a final May 1983 rating decision, which he subsequently tried to reopen and was denied by the Board in a June 2012 decision.) Accordingly, service connection is not warranted for a bilateral knee disability as secondary to the non-service-connected pes planus. 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 hypertension and 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, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Service treatment records show the Veteran entered and exited service with clinically normal lower extremities and no complaints of arthritis, as documented on March 1976 and June 1976 examinations. No complaints related to the Veteran's knees were noted during service. Post-service, the first evidence of treatment for the Veteran's bilateral knee disability is a private treatment record, dated December 2005, and notes that the Veteran stated his knee pain began the prior year. Another private treatment note, issued sometime after January 2006, indicates that the Veteran reported that his knee pain began three years prior. Subsequent VA treatment notes reflect ongoing care for the Veteran's bilateral knee disability, diagnosed as osteoarthritis. In June 2012, the Veteran underwent a VA examination, during which he reported to the examiner that he knees starting hurting him about nine years prior. After reviewing the Veteran's claims file and conducting a full examination, the clinician opined that it was less likely than not that the Veteran's bilateral knee disability was related to service. He reasoned that the Veteran's service treatment records were silent for any knee complaints, that the Veteran explicitly told him his knee symptoms had their onset within the past ten years, and that the Veteran attributed his bilateral knee disability to his foot condition (flat feet). The examiner then stated that the Veteran's bilateral knee disability was due to aging, his post-service occupation of working at a landfill, and obesity. Here, the Board accords the June 2012 examination report significant probative value on the question of etiology, as it reflects an opinion based on a thorough review of the Veteran's medical records and provides a rationale which discusses the Veteran's assertions and pertinent medical history. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 299-301 (2008) ('the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.') quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, 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 accepts the VA examiner's opinion as being highly probative with respect to the Veteran's claim. See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicator). There is no contrary competent evidence or opinion of record to refute the VA examiner's opinion, and neither the Veteran nor his representative has identified an existing opinion by a competent professional to support the claim. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis of the knees to a degree of 10 percent within the one year following his active duty service discharge in June 1976. There is nothing in the Veteran's separation examination to indicate a bilateral knee disability had its onset during service or shortly after service. Rather, the first medical evidence of a bilateral knee disability was nearly thirty years after the Veteran separated from service. Additionally, the Board notes that the Veteran has not alleged continuity of symptomatology of a bilateral knee disability since service, and, regardless, such is not supported by the record. The Veteran has specifically attributed his bilateral knee disability to his pes planus, which is not service-connected, and stated that his bilateral knee disability symptomatology did not manifest until decades after service. Therefore, the Board finds that the Veteran did not manifest arthritis of the knees, to include on the basis of continuity of symptomatology, within one year of his June 1976 discharge from service. As such, presumptive service connection is not warranted for a bilateral knee disability. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The evidence does otherwise not demonstrate that the Veteran's bilateral knee disability is related to service. In this regard, the June 2012 examiner, who took into consideration all of the relevant facts in providing an opinion, to include the Veteran's service treatment records, post-service treatment, and the current nature of his bilateral knee disability, found no link between his service and his bilateral knee disability. Furthermore, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's bilateral knee disability and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. Moreover, the Board again notes that the Veteran has attributed his bilateral knee disability to his pes planus, which is not service-connected. Based on the foregoing, the claim for service connection for a bilateral knee disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a bilateral knee disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs