Citation Nr: 1323580 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 04-25 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee degenerative joint disease and/or service-connected lumbosacral strain with degenerative joint disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty from December 1968 to September 1972 and from January 1991 to April 1991, with various other verified and unverified periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which, in pertinent part, denied the Veteran's request to reopen his claim for service connection for a knee condition. In March 2007, the Veteran testified before a Decision Review Officer at a RO hearing. He also testified before the undersigned Veterans Law Judge at a RO (Travel Board) hearing in December 2007. Hearing transcripts have been associated with the claims file. In February 2008, the Board remanded what was then a request to reopen a claim for service connection for a right knee disorder to the Appeals Management Center (AMC) for additional development and adjudication. In October 2009, the Board granted the Veteran's request to reopen a claim for service connection for a right knee disorder and remanded the reopened claim to the AMC for additional development and adjudication. In September 2011, the Board again remanded the instant claim for service connection for a right knee disorder to the AMC for additional development and adjudication. In October 2012, the Board sought an opinion as to the instant claim from the Veterans Health Administration (VHA). Such an opinion was obtained in December 2012. The Veteran was provided a copy of this opinion in January 2013 as well as an additional 60-day period to submit additional evidence and/or argument. A review of the Virtual VA claims processing system reveals VA treatment records dated through May 2013. The Veteran had waived RO consideration of any additional evidence received in favor of direct consideration by the Board in March 2013. See 38 C.F.R. § 20.1304 (2012). FINDING OF FACT The evidence supports a finding that the Veteran currently has a right knee disorder as a result of his service-connected left knee degenerative joint disease and/or service-connected lumbosacral strain with degenerative joint disease. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. With respect to the Veteran's claim for service connection for a right knee disorder, given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Service Connection A. Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is listed as a chronic disability under 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Right Knee Disorder The Veteran contends that he injured his right knee during service while moving patients and equipment. He has also alleged that his service-connected left knee and lumbar spine disorders caused or aggravated his right knee disorder. An October 1968 service entrance examination was negative for any relevant abnormalities and the Veteran denied a "trick" or locked knee in an accompanying Report of Medical History (RMH). An August 1972 service discharge examination found the Veteran's lower extremities to be normal and the examiner noted that the Veteran had injured his knee in a warehouse accident in 1970 and that the "trick" or locked knee identified by the Veteran referred to knee pain after strenuous exercise. The Veteran reported a "trick" or locked knee in an accompanying RMH and the examiner noted that the Veteran "had it prior to entering into service;" the specific affected knee was not identified. Treatment records from the Veteran's Reserves service were negative for complaints, treatments or diagnoses related to any right knee disorder. Examinations conducted in August 1982, April 1988 and August 1992 found the Veteran's lower extremities to be normal. Post-service treatment records include a May 2004 private X-ray which revealed mild to moderate right knee osteoarthritis. A February 2005 private treatment note contained an impression of knee degenerative joint disease. In a November 1972 VA examination, the Veteran reported that he had difficulty with knee pain during service, that this pain persisted for short periods of time, that it usually did not bother him while performing athletics and that he played basketball regularly without any disability. No orthopedic abnormalities, outside of findings related to the left knee, were found on physical examination. VA examinations conducted in April 2003, December 2004 and May 2005 were negative for complaints, treatments or diagnoses related to any right knee disorder. The Veteran provided testimony at two hearings. He described his right knee symptoms in a March 2007 hearing. During a December 2007 hearing, he testified that he had "banged" his right knee a couple of times during service while moving patients at the base hospital and that there was no documentation of these injuries. In a December 2008 treatment note, a VA physical therapist opined that it was likely that the significant impairment related to the Veteran's service-connected left knee disorder had forced biomechanical adjustments and deterioration, resulting in pain in his other knee. A July 2009 opinion from J. B., a private podiatrist, indicated that the Veteran's knee osteoarthritis had been exacerbated by altered biomechanics related to his plantar fascia and pes valgus planus. The provider further opined that "this" could have resulted from service. In a February 2011 addendum to a March 2010 VA examination, the examiner opined that it was his medical opinion that the Veteran's right knee condition was not caused by or a result of the his service. The examiner noted that he had based his opinion on the Veteran's history and physical examination as well as a review of his claims file, to include physical examinations conducted in August 1982, April 1988 and August 1992, which had noted no evidence of a right knee condition. In a November 2011 opinion, which was drafted by the same examiner who conducted the March 2010 VA examination, the examiner opined that the Veteran's right knee condition was not caused by or a result of his service or his service-connected left knee and lumbar spine disorders. The examiner noted that his opinion was based upon the August 1972 service discharge examination, which was negative for evidence of a right knee condition, the Veteran's history and the March 2010 physical examination. The examiner also noted that there was no evidence of a lumbar spine or left knee condition at service discharge. A March 2012 opinion from R. P., a private doctor of osteopathy, indicated that the altered body mechanics which the Veteran had developed over the years due to the degeneration and injuries which he sustained during service and led to the degenerative disorders, to include his right knee disorder. The specific degeneration and injuries sustained in service were not identified by the provider. A December 2012 VHA examiner opined, following a review of the Veteran's claims file, that the Veteran's right knee disorder did not have any causal relationship to, nor was it permanently aggravated by, the Veteran's service-connected left knee disorder as the Veteran had slowly developing osteoarthritis pathologic changes in his biological life. The examiner noted that the Veteran did not have a positive examination for right knee problems or right knee conditions at service discharge in August 1972 nor was there evidence of a left knee condition or lumbar spine condition at service discharge. The examiner further opined that the Veteran's right knee disorder was the result of a natural process, namely aging and a biologic process, and his weight of 240 pounds. Finally, the examiner noted the private opinion which "speculated" as to some connection between the Veteran's right knee disorder and his service-connected disabilities and indicated that such remarks were speculative and not determined by the current medical knowledge. Various lay statements were submitted by the Veteran. Letters submitted in May 2007 authored by the Veteran's work associates detailed the impact of the Veteran's physical disabilities on his employment responsibilities. A June 2007 from M. K., who had stated that he had known the Veteran for 17 years, indicated that the Veteran had often showed signs of pain and had reported knee pain. In an August 2007 letter, D. L. indicated that he had served with the Veteran and that the Veteran "always" had problems with his knees. The Veteran has a current disability as he has been diagnosed with right knee osteoarthritis. The December 2012 VHA examiner opined that the Veteran's right knee disorder was not caused by service or his service-connected lumbar spine or left knee disabilities, reasoning that there was no evidence of a left knee or lumbar spine condition at discharge. In addition, the March 2010 VA examiner, in his February 2011 and November 2011 addendum opinions, also opined that the Veteran's right knee disorder was not caused by service or his service-connected lumbar spine or left knee disabilities, and reasoned that there was no evidence of a left knee or lumbar spine condition at discharge. However, service connection has already been granted for these disabilities and the examiners were to consider whether the claimed right knee disorder was caused or aggravated by the service-connected lumbar spine or left knee disabilities, not whether these disabilities existed at service discharge. As these opinions appear to be based upon an inaccurate factual premise, they are afforded little, if any, probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In contrast, a March 2012 private osteopath opined that the Veteran's right knee disorder developed as a result of altered body mechanics caused by his service-connected disorders over the course of years. This opinion was based upon a review of the Veteran's medical history and contained a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). In addition, a December 2008 VA treatment note suggested that the Veteran's service-connected left knee disorder forced biomechanical adjustments and resulted in right knee deterioration. Therefore, given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for a right knee disorder are met. There is competent and credible evidence with regard to whether there is a nexus, which consists of the March 2012 private opinion and a December 2008 VA treatment note. As the evidence is at least in equipoise, and resolving all doubt in the Veteran's favor, entitlement to service connection for a right knee disorder is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a right knee disorder, as secondary to service-connected left knee degenerative joint disease and/or service-connected lumbosacral strain with degenerative joint disease, is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs