Citation Nr: 1323599 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-12 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability secondary to service-connected right knee cruciate deficiency with chondromalacia and degenerative arthritis. 2. Entitlement to service connection for a right hip disorder secondary to service-connected right knee cruciate deficiency with chondromalacia and degenerative arthritis. 3. Entitlement to service connection for degenerative changes of the lumbar spine secondary to service-connected right knee cruciate deficiency with chondromalacia and degenerative arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active military service from September 1977 to June 1983. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a November 2007 rating decision of the VA Regional Office (RO) in Waco, Texas. These claims were previously before the Board in November 2010 and June 2012 when they were remanded for further development. A review of the Virtual VA paperless claims processing system shows that VA treatment records through March 2013 are of record. The Veteran waived his right to review of the newly generated evidence by the agency of original jurisdiction (AOJ) in December 2012. In April 2013, the RO reevaluated the Veteran's right knee disability based upon recent total right knee replacement surgery. Such rating action satisfies the referral for adjudication made in the June 2012 Remand. FINDINGS OF FACT 1. A left knee disorder is not attributable to the Veteran's period of military service; no left knee disorder was caused or aggravated by a service connected right knee disability. 2. A right hip disorder is not attributable to the Veteran's period of military service; no right hip disorder was caused or aggravated by a service connected right knee disability. 3. A low back disorder is not attributable to the Veteran's period of military service; no low back disorder was caused or aggravated by a service connected right knee disability. CONCLUSIONS OF LAW 1. The Veteran does not have a left knee disorder that is the result of disease or injury incurred in or aggravated by active military service or secondary to a right knee disability. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. The Veteran does not have a right hip disorder that is the result of disease or injury incurred in or aggravated by active military service or secondary to a right knee disability. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. The Veteran does not have a low back disorder that is the result of disease or injury incurred in or aggravated by active military service or secondary to a right knee disability. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished for the issues being adjudicated on appeal. Through a June 2007 notice letter, the RO notified the Veteran and his representative of the information and evidence needed for the Veteran's claims of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the June 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his claimed disability. The Veteran had an opportunity to submit information and evidence in light of this notice before subsequent adjudication by the agency of original jurisdiction most recently in the December 2012 Supplemental Statement of the Case. Consequently, a remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran's service treatment records and pertinent VA treatment records have been obtained and associated with the claims file, including a comprehensive report of all available VA treatment records. The Veteran was afforded an adequate VA examination for his disability claims in November 2007 and December 2010 with a June 2012 addendum medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record reflects substantial compliance with its November 2010 and June 2012 Remands. The agency of original jurisdiction (AOJ) obtained an addendum medical opinion from the December 2010 VA examiner regarding the possibility of aggravation. The AOJ re-adjudicated the issues by way of a December 2012 supplemental statement of the case. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied and that there was substantial compliance with the terms of its November 2010 and June 2012 remands. See D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)); Stegall v. West, 11 Vet. App. 268 (1998). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Degenerative joint disease is a chronic disability recognized under 38 C.F.R. § 3.309(a) and the continuity of symptomatology provisions are applicable. Id. Under 38 C.F.R. § 3.303(b), continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). If a chronic disorder, such as arthritis, manifests to a compensable degree within one year after separation from service, it may be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, as will be discussed in detail below, the Board finds that degenerative changes did not manifest until many years following service. Thus, the presumption is not helpful in this case. Service connection may also be granted for a disease first 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). A disability may be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Moreover, in general, any increase in severity of a nonservice-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. 38 C.F.R. § 3.310(b) (2012). 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 professional." 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"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (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")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) 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). 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). Service treatment records do not show any complaints or findings for the left knee, right hip, or low back. Rather, the Veteran asserts these disabilities are secondary to his service connected right knee disability. See April 2007 claim. The Veteran underwent a VA joint examination in November 2007. The examiner reviewed the claims folder. The Veteran stated that he had an onset of mechanical left knee pain, low back pain, and right hip pain in approximately May 2006. He denied any injury. Clinical examination showed the Veteran to walk slowly and favor his right leg. He used a cane. Clinical examination was grossly normal. X-rays suggested degenerative changes. The examiner diagnosed lumbar spine degenerative disc and facet disease; right rip degenerative joint disease, and left knee degenerative joint disease. The examiner opined that it was less likely than not that the claimed disabilities were related to the service connected right knee disability. He explained that orthopedic literature does not include any credible studies showing post traumatic changes of one joint may induce degenerative changes in another joint. He believed the claimed disabilities were related to degenerative aging. VA reexamined the Veteran in December 2010 with a different examiner. The claims folder was reviewed. The Veteran complained about left knee pain and dated its onset to 1998. He stated that he had an onset of right hip and low back pain in early 2010. Clinical examination was grossly normal with some movements limited by joint pain. The examiner observed a normal gait. X-rays were taken. The examiner diagnosed left knee chondromalacia patella, right hip degenerative joint disease, and lumbar myofascial syndrome. He stated that there was no evidence that right hip, low back, or left knee were directly related to service. He stated that there is no medical authority or literature that associates right hip degenerative joint disease and myofascial pain with ipsilatral knee condition in a patient with a normal gait. He further commented that he was not aware of any study suggesting a right knee disability can cause right hip degenerative joint disease or lumbar myofascial syndrome in a normally gaited individual. VA treatment records, dated in August and September 2011, noted a mildly antalgic gait and a steady gait. Private medical records from January 2012 were unremarkable for any gait abnormality. In June 2012, the December 2010 VA examiner provided an addendum opinion. He re-reviewed the claims folder. He stated that it was less likely than not that any of the currently claimed disabilities were aggravated by the service connected right knee disability. He stated that no medical authority or peer reviewed journal supports the contention that a stable right knee in an individual without gait disturbance could aggravate the left knee, low back, or right hip. VA treatment records from October 2012 show that the Veteran underwent a right knee arthroscopic procedure. He remained on crutches and his gait was not assessed. The Veteran contends that his current left knee, right hip, and low back disabilities are either related to service or service-connected right knee disability. 38 C.F.R. §§ 3.303(b), 3.310. As an initial matter, the Board notes that any arthritis was not confirmed until many years following service and presumptive service connection for arthritis is not warranted for any of the claimed disabilities. 38 C.F.R. §§ 3.307, 3.309. As noted above, degenerative arthritis is a chronic disease recognized under 38 C.F.R. § 3.309. The alternative method of establishing service connection through a continuity of symptomatology under 38 C.F.R. § 3.303(b) is applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, Veteran does not contend that any of the claimed disabilities were noted in service. He contends that they are secondary to his service connected right knee disability. Here, the question of whether one joint disability caused another joint disability many years later is a complex medical question. See Woehlaert, 21 Vet. App. 456; see also Waters, 601 F.3d 1274. The Veteran is not shown to be a medical professional and his contentions of a nexus have no probative value. Id.; see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, competent medical evidence is required to establish a nexus. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The competent medical evidence in this case is limited to November 2007, December 2010, and June 2012 VA clinical examinations and opinions. The examiners provided negative opinions on direct and secondary service connection, to include aggravation. The medical opinions found within these records are plausible and uncontroverted by any additional medical opinion. Briefly, the Board notes that the June 2012 VA examiner described the Veteran's right knee as stable based upon the December 2010 examination. This would appear to conflict with Dr. L.D.'s January 2012 assessment of an unstable right knee. However, VA treatment records from October 2011 reflect that the Veteran very rarely had right knee instability and clinical findings supported such report. VA treatment records from August 2011 show the Veteran reporting instability, but clinical findings were negative. Hence, the June 2012 VA examiner's note of a stable right knee is not inconsistent with the record. Overall, the Board considers these VA medical opinions to be probative and weigh against the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). The preponderance of the evidence is against finding a nexus to service. Without competent evidence of a nexus, the claims must be denied. 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.310. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claims. The benefit-of-the-doubt doctrine is therefore not applicable and the claims for service connection for a left knee, right hip, and low back disabilities must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. (CONTINUED ON NEXT PAGE) ORDER Service connection for a left knee disability is denied. Service connection for a right hip disability is denied. Service connection for a low back disability is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs