Citation Nr: 1322192 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 13-00 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for left knee patellofemoral syndrome and degenerative joint disease (a left knee disability), to include as secondary to service-connected bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1985 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In an April 2011 notice of disagreement, the Veteran specifically expressed disagreement with the RO's April 2011 denial of service connection for bilateral plantar fasciitis and bilateral patellofemoral syndrome. In December 2012, the RO fully granted service connection for bilateral plantar fasciitis and right patellofemoral syndrome; therefore, those issues are not in appellate status, and are not before the Board. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran sustained a left knee injury in service. 2. Symptoms of a left knee disability were not chronic in service. 3. Symptoms of a left knee disability have been continuous since service separation. 4. The Veteran's current left knee disability of degenerative joint disease and patellofemoral syndrome is related to his active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a left knee disability of patellofemoral syndrome and degenerative joint disease have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claim of service connection for a left knee disability, to include as secondary to service-connected bilateral plantar fasciitis, has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, degenerative joint disease (as arthritis) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Left Knee Disability The Veteran contends that his left knee disability originated in service. Specifically, he contends that that he injured his left knee while running in service. He reports that left knee symptoms have continued since the knee injury in service. The Veteran has alternatively contended that the left knee disability was caused or worsened by the service-connected bilateral plantar fasciitis. In this regard, because the Board is granting service connection for a left knee disability on a direct basis (adjudicated herein), the theory of secondary service connection is rendered moot, and will not be further discussed. After a review of all the evidence of record, lay and medical, the Board first finds the Veteran sustained a left knee "injury" in service. Evidence that supports this finding is included in a May 14, 1985 service treatment record, which reflects the Veteran's complaint of recurrent knee pain since running three miles the day prior to treatment. Upon physical examination, the assessment was a resolving medial collateral ligament (MCL) strain with patellofemoral arthralgia. While the Veteran sustained a left knee injury in service, the evidence does not show "chronic" left knee symptoms during service. Service treatment records weigh against a finding of chronic symptoms of a left knee disability during service. After May 14, 1985, the service treatment records are absent for complaints, diagnosis, or treatment of a left knee disability. Indeed, a subsequent service treatment record from May 17, 1985 indicated that the Veteran continued to complain of right knee pain, but did not complain of left knee pain. Such evidence weighs against a finding of chronic left knee disability symptoms during service. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board further finds that the evidence of record is at least in equipoise on the question of whether the Veteran had "continuous" symptoms of a left knee disability after service separation. The evidence that weighs against the claim includes that, following service separation in August 1985, the evidence of record shows no complaints, diagnosis, or treatment for a left knee disability until 2008. The absence of post-service findings, diagnosis, or treatment for approximately 23 years after service is one factor that tends to weigh against a finding of continuous left knee symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). However, favorable evidence includes a private treatment report from September 2008, which was approximately two years prior to filing the current claim for service connection, during which the Veteran sought treatment for bilateral knee pain. During private treatment, the Veteran reported a gradual onset of pain from work duties and that the pain was getting worse over time. The Veteran is competent to provide evidence regarding his left knee symptoms that he experienced at any time, including since service separation, as such symptoms are readily apparent. Such lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno at 469; see also 38 C.F.R. § 3.159(a)(2). This statement made to the Veteran's private treating physician in September 2008 is of probative value because it was made during the course of treatment. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991). Furthermore, the Board finds the Veteran's allegations of continuous post-service symptoms of the left knee are credible because they have been consistent throughout the claim and appeal process. In the April 2011 notice of disagreement, the Veteran explained that he did not seek medical attention for his knee problems until years after service because he was a recovering addict. He states that he finally sought treatment after getting his life together and finding a job. He also stated that he had knee problems since his time in the military. In short, with regard to the Veteran's assertions that symptoms of a left knee disorder began during active duty and have continued following service, the Board finds that the Veteran is competent and credible to report the onset of symptoms of left knee disability. See Charles, 16 Vet. App. 370; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno at 469-470 (finding lay testimony competent when it concerns features or symptoms of injury or illness); see also Caluza, 7 Vet. App. at 498 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As such, the Board will resolve reasonable doubt to find that the Veteran's left knee symptoms were continuous since service, thus meeting the 38 C.F.R. § 3.303(b) criteria for presumptive service connection. The Board further finds that the Veteran has a current disability of left knee degenerative joint disease and patellofemoral syndrome. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current left knee degenerative joint disease and patellofemoral syndrome are related to service. The Veteran underwent VA examinations of the right knee in February 2011 and November 2012. Both examiners only noted in-service treatment of a right knee disability. Based on the inaccurate factual assumption that there was no left knee injury or treatment in service, and that the Veteran did not seek treatment for the left knee until 2008, both VA examiners opined that the current left knee disability is not related to service. As the VA examiners' statements are conclusory and provide no clear rationale, the medical opinions are of no probative value. See Miller, 11 Vet. App. at 348 (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). The VA examiners relied on the inaccurate fact of absence of a left knee injury in service. As explained above, the service treatment record evidence and the Veteran's statements show that the Veteran, in fact, sustained a left knee injury in service. The VA examiners also relied upon an inaccurate factual assumption that there was no left knee symptomatology since service. The VA examiners relied only on the evidence of no continuity of care for a left knee condition immediately after discharge from active service, assuming that the Veteran first obtained evaluation and management of his left knee condition decades after service. Continuity of treatment may be some evidence, but is not required to support a claim for service connection. See 38 C.F.R. § 3.303(b) (stating a finding of chronic symptoms in service and/or continuity of symptoms since service if what is required in service connection claims). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). As explained above, resolving reasonable doubt in the Veteran's favor, the Board has found that the Veteran did experience continuous left knee symptoms since service. As such, the Board finds that the February 2011 and December 2012 VA medical opinions, while competent, are of no probative weight, as the examiners in rendering their opinions do not appear to have considered the in-service left knee injury or the Veteran's assertions of continuous left knee symptoms since service separation. Reonal, 5 Vet. App. at 461 (medical opinion based upon an inaccurate factual premise has no probative value). The December 2012 VA examiner noted the Veteran's report of continuing knee pain following service; however, she did not discuss the significance, if any, of the report of symptoms. As indicated, with reasonable doubt resolved in the Veteran's favor, the Board has found continuity of symptomatology since service separation; therefore, this is a fact the VA examiners should have considered. The Board finds that there is competent evidence of a relationship between the Veteran's currently diagnosed left knee disability and active service. Specifically, the Veteran sustained a left knee injury in service resulting in pain and he reported that he has experienced those same symptoms continuously since service separation. See 38 C.F.R. § 3.303(b) (if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection). The same symptoms formed the later diagnosis of left knee degenerative joint disease and patellofemoral syndrome. See Rhodes v. Brown, 4 Vet. App. 124, 126-27 (1993) (lay witnesses testimony of post-service continuous symptoms of numbness and tingling may be sufficient to substantiate a claim of service connection for thoracic outlet syndrome); Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition); Savage, 10 Vet. App. at 496-97 (continuity of post-service symptoms is "a substitute way of showing" in-service incurrence and medical nexus). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a left knee disability of degenerative joint disease and patellofemoral syndrome have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left knee disability of degenerative joint disease and patellofemoral syndrome is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs