Citation Nr: 1323927 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 06-02 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disorder, to include as secondary to a lumbar spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Travel Board hearing was held in February 2008 before the undersigned Veterans Law Judge, sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In a May 2012 Board decision, the procedural history of the current claim was reported in detail. It will not be repeated here. In that decision, the Board remanded the claim for additional evidentiary development, to include a contemporaneous evaluation. In February 2013, the claim was remanded again for obtainment of a VA examiner's nexus statement. The statement is now part of the record, and the claim has now been returned for further appellate consideration. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT The preponderance of the evidence is against a find that a left knee disorder is related to service or was caused or aggravated by a service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for a grant of service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in November 2003, June 2004, August 2004, January 2007, April 2011, and May 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claim. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the January 2007 and April 2011 letters mentioned above. Next, the appellant was afforded the opportunity to testify before the Board in February 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the undersigned essentially elicited testimony necessary to determine the nature of the appellant's claim regarding service connection for a left knee disorder. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the DRO and the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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) (2012). Where there is a 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) (2012). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as degenerative joint disease (DJD)/arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (2012). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff had, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2012). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that his left knee disorder is the result of in service injury or due to his service-connected lumbar spine disorder. The preponderance of the evidence is against the claim under both theories of entitlement, and the appeal will be denied. Review of the STRs reflects that the Veteran was in a motor vehicle accident (MVA) in July 1967. He suffered a left shin contusion and spasms of the lumbar spine. X-rays of the left leg were negative. No left knee/leg condition was noted upon service separation examination. Post service private records show that the Veteran was in another MVA in October 1975. An acute neck and back strain was noted. After a MVA in August 1982, he complained of back and leg pain, but no significant conditions were found upon evaluation, to include electromyogram (EMG) studies. Private X-ray of the left knee in January 1994 was negative. A private physician reported that he had treated the Veteran for recurring low back problems from 1968 to 1994. VA records show mild degenerative changes in the lumbar spine in the late 1990s. Herniated disks were noted in 2002 as were left knee problems, to include a left knee torn medial meniscus as seen upon magnetic resonance imaging (MRI) in September 2002. The Veteran was in another MVA in January 2003 and reported back and left leg pain. In a September 2003 Board decision, service connection was established for a lumbar spine condition. Following VA examination in November 2004, it was noted that the left knee was now post surgery. It was opined that the left knee disorder was not secondary to the lumbar spine disability. Also of record is a July 2005 VA examiner's opinion that his left knee condition was related to the inservice injury. The Board notes that the Veteran gave differing descriptions of inservice injuries to each examiner. For example, he told the examiner in 2004 that he only injured his back in the inservice MVA. He told the 2005 examiner that he injured various joints in the accident to include the left knee. In February 2008, the Veteran provided testimony in support of his claim. Essentially, he claimed that he hurt his left knee during the inservice MVA. See hearing transcript at page 16. Subsequently dated private and VA records (through 2013) are of record and show continued treatment for lumbar spine and left knee conditions. Following VA examination in August 2010, to include review of the claims file, it was opined that the Veteran's left knee condition was not of service origin or secondary to the lumbar spine disorder. At that time, it was noted that the Veteran gave a history of injuring his knee during in an inservice MVA. He also gave a history of post service injury to the left knee in November 1996 which required surgery shortly thereafter. The Veteran denied other injuries to the left knee during service or thereafter. Due to the contradictory opinions of record and varying descriptions as to the joints injured during service, the Board remanded the claim of service connection for a left knee disorder for additional evaluation in a 2012 remand. The requested examination was conducted in June 2012. The claims file was reviewed. The examiner opined that the left knee condition was less likely than not incurred in or caused by the claimed inservice MVA injury. For rationale, he noted the Veteran's left knee was treated conservatively during service. After additional post service knee injury in the 1980s, he experienced deteriorating left knee problems. Based on his interview and review of the records, to include all previous exam reports, it was opined that the left knee condition was due to this post service injury. The examiner added that it was possible that the Veteran's left knee pain might be due to nerve root compression due to the lumbar spine degenerative changes. However, his objective knee DJD was not due to a back condition, but due to a mechanical deterioration of the knee that was likely due to the post service MVA. Additional VA treatment records dated subsequent to the 2012 examination were added to the record, to include a February 2013 statement by another physician. The physician stated that the claims file was reviewed and it was opined that it was as likely as not that the current disability pertaining to the Veteran's "pain in the knees and back" was related to degenerative disc disease (DDD) and degenerative arthritis related to injuries sustained while in service. The claim will be denied. As to direct service connection, although the Veteran reported left knee pain in an inservice MVA, he was only diagnosed with a lumbar spine condition. Moreover, post service records show no left knee disorder for many years after service. The preponderance of the evidence is against the Veteran's claim for direct service connection. The lack of competent evidence in service and continuously thereafter and the lack of evidence linking the Veteran's current left knee to service, to include the negative VA examiner's opinion, weigh against the Veteran's contentions. While the February 2013 physician's statement that the Veteran's knee pain is due to inservice injury, the Board finds that the inservice treatment records are more probative. It was specifically noted in the STRs that X-rays showed no left leg condition, and further problems with the left knee were not clinically noted until after additional post service left knee injury. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board has accorded greater evidentiary weight to the VA specialist who reviewed the record and examined the Veteran in 2012, and concluded that the Veteran's left knee DDD was unrelated to the inservice injury. With respect to secondary service connection, the Veteran contends that his left knee disorder was proximately caused or aggravated by a service-connected lumbar spine disorder. On several occasions, he has attributed his left knee condition to an altered gait due to his lumbar spine disability. However, as reported by the VA specialist in 2012, the Veteran's left knee condition was not associated with the lumbar spine disorder, as the left knee showed deterioration in condition after a post service injury in the mid 1980s. To the extent that the 2013 VA physician's statement supports the claim on a secondary basis, the Board notes that no rationale for the favorable opinion is of record. The examiner does not provide any rationale for why current left knee problems are, in his or her opinion, associated with a lumbar spine disorder. Instead, it is specifically noted that the left knee disorder resulted from a post service injury. With regard to the presumption of degenerative changes/arthritis, there is no evidence the Veteran had such in his left knee within one year of service. Accordingly, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309 (2012). A preponderance of the competent probative evidence of record is against the Veteran's assertion that his service-connected lumbar spine DDD is the proximate cause of, or has aggravated, his left knee disorder. There is no competent evidence to the contrary. T Otherwise stated, the Veteran's lay contentions have been fully investigated by a competent medical examiner and found unsubstantiated as in Jandreau, supra. The Veteran is competent to report knee pain. However, the probative evidence indicates that the Veteran's left knee symptoms developed continuity well after separation. Although the Veteran has submitted his own lay statements indicating that his left knee pain began following an inservice MVA or are due to his back condition, the evidence as related above clearly reflects that no left knee disorder was noted until after intercurring post service left knee injury. Moreover, a physician has provided an opinion that current left knee problems are not related to the lumbar spine (based on review of the record and the Veteran). The clinical findings of record and the VA examiner's report weigh against his claim and cast doubt on his description of the inservice injury. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a left knee disorder on a direct, secondary, and presumptive basis and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a left knee disorder is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs