Citation Nr: 1324364	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  09-43 730	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a right knee disorder, including as secondary to a service-connected left knee disability.




ATTORNEY FOR THE BOARD

C. Bruce, Counsel



INTRODUCTION

The Veteran served on active duty from July 1980 to July 2000.

This appeal to the Board of Veterans' Appeals (Board/BVA) is partly from a November 2008 RO decision that reopened, but continued to deny, the Veteran's claim for service connection for periodontal disease.  That decision also denied his claim for service connection for obstructive sleep apnea.

He indicated in his October 2009 substantive appeal (on VA Form 9) that he wanted a hearing at the RO before a Veterans Law Judge of the Board.  However, he later indicated in February 2011 that he no longer wanted a hearing before the Board, so he has withdrawn his hearing request.  38 C.F.R. § 20.704(e) (2011).

This appeal is also from a March 2010 RO decision determining that new and material evidence had not been submitted to reopen a previously denied claim for service connection for a right knee disorder. A notice of disagreement (NOD) was received from the Veteran in April 2010 in response to this additional decision, and a statement of the case (SOC) was issued in January 2011.  A letter subsequently was received in March 2011 from his then representative, an attorney, to the effect that the Veteran was continuing with his appeal of the RO's March 2010 decision that had denied his claim for service connection for a right knee disorder.  The attorney also requested the issuance of an SOC concerning this claim (although, as mentioned, this already has been done).  Read liberally, the Board construed the attorney's March 2011 letter as a timely substantive appeal concerning this other claim, as it was received within one year of notification of the RO's March 2010 decision or within 60 days of that SOC. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.304, 20.305, and 20.306.

The Veteran initially was represented by a Veterans' Service Organization (VSO).  In March 2011, however, he revoked his appointment of that organization and instead appointed an attorney, C.D.R., as his new representative.  But in a letter since dated in September 2011, the attorney notified VA that he was withdrawing as the Veteran's representative pursuant to the Veteran's request.  Consequently, the Veteran is no longer represented in this appeal.  In a November 2011 letter, the Board notified him of his attorney's withdrawal as his representative and advised him that he could appoint another representative.  He was told that if a response was not received from him in 30 days, VA would assume he wanted to represent himself, so proceed pro se, and that review of his appeal would be resumed.  As no response was received from him and as he still had not appointed another representative within the time allotted, the Board concluded that he wanted to represent himself and, therefore, proceeded with review of his appeal.

In a January 2012 decision, the Board reopened his claims for service connection for periodontal disease and a right knee disorder because there was the required new and material evidence concerning these claims.  However, the Board then readjudicated and denied the claim for service connection for periodontal disease on its underlying merits, but instead remanded the claims for service connection for a right knee disorder and sleep apnea to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. 

In an October 2012 decision since issued, the Board denied the claim for service connection for sleep apnea, but again remanded the claim for a right knee disorder for still more development and consideration.  That development having been completed, but the claim still denied, it is again before the Board.


FINDING OF FACT

The preponderance of the competent and credible evidence weighs against finding that the Veteran's right knee disorder is related or attributable to his military service, including caused or worsened by a service-connected disability, in particular, his left knee disability.



CONCLUSION OF LAW

His right knee disorder is not shown to be due to disease or injury incurred in or aggravated by his military service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by a service-connected disability, especially his left knee disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance with their claims upon receipt of a complete or substantially complete application for benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  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 obtain; 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/CAVC) held that these 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:  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.


In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), ideally should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  But if notice was not provided prior to initially adjudicating the claim, or if provided it was inadequate or incomplete, then VA need only provide the required notice and readjudicate the claim - including in an SOC or supplemental SOC (SSOC), such that the intended purpose of the notice is still served and the Veteran given ample opportunity to participate effectively in the adjudication of his claim.  This, in effect, will rectify ("cure") the timing defect in the provision of the notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, VA has satisfied its duty to notify under the VCAA.  Specifically, the Veteran was sent letters in October 2009 and January 2012 concerning his claim of entitlement to service connection for a right knee disorder, advising him of the evidence and information necessary to substantiate this claim, as well as apprising him of his and VA's respective responsibilities in obtaining this supporting evidence and information.  And as for the Dingess requirements, he was sent this notice by way of the October 2009 letter, which discussed the "downstream" disability rating and effective date elements of this claim prior to the initial adjudication of this claim in March 2010, so in the preferred sequence.

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors are not presumptively prejudicial, instead, must be determined on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but, above and beyond this, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  The Veteran has not made any such pleading or allegation, much less made the required showing.


As concerning the duty to assist, the Veteran's service treatment records (STRs), post-service VA treatment records, and all lay statements in support of his claim have been obtained and considered.  He has not identified any additional or outstanding records that have not been requested or obtained relevant to his claim, which are obtainable.

Additionally, he was provided VA examinations in December 2009, April 2012, and November 2012 specifically addressing whether his diagnosed right knee disorder is attributable to his military service or incepted during his service.  These examinations and opinions are sufficient to decide this claim, as they are collectively predicated on the correct facts and, most importantly, include discussion of the underlying rationale for these opinions, which is where most of the probative value is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Moreover, in obtaining these examinations and medical nexus opinions, there was compliance with the Board's January and October 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Veteran is entitled, as a matter of law, to compliance with remand directives, and the Board itself commits error in failing to ensure this compliance).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", if not "exact", "total" or "complete" compliance, per se). 

It therefore is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate this claim.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994) (observing circumstances when a remand, especially like here, another remand, would not service any useful or meaningful purpose or result in any significant benefit to the Veteran).

Accordingly, the Board will proceed to adjudicating the claim on its merits.


II.  Whether Service Connection for a Right Knee Disorder is Warranted

The Veteran is alleging this disorder was directly incurred during his 20 years of military service.  He also claims, however, this disorder alternatively may be due to his service-connected left knee disability, i.e., that it is proximately due to, the result of, or aggravated by this disability, so secondarily related to his service.

Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

So establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999).

If chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Under § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  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, 12 Vet. App. At 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).

In-service notation of a condition does not require medical evidence where the condition is of a type as to which a lay person's observation is competent.  However, although prong (3) does not require medical nexus evidence, because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent.

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Court explicitly rejected the argument that a dictionary definition of "chronic" should be used instead, noting that continuity of symptomatology in § 3.303(b) had no other intent than to afford an alternative route to service connection for specific chronic diseases.  Id.

Notably, arthritis is a chronic disease per se listed in § 3.309(a), and as such, the Veteran's right knee disability, which has been diagnosed as osteoarthritis, is the type of condition that is subject to this continuity of symptomatology exception to the pleading requirements.  Hence, if it is determined that his right knee osteoarthritis manifested within a year of his separation from active duty service, his right knee disability will be presumptively associated with his service, even aside from showing continuity of symptomatology since his service.


He as mentioned is also claiming that his right knee disability is secondary to his service-connected left knee disability.  According to 38 C.F.R. § 3.310(a) and (b), service connection is permissible on this alleged secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  Establishing entitlement to service connection on this secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Thus, in order to establish entitlement to service connection for a claimed secondary disorder, there must be competent and credible evidence of a current disability; evidence of a service-connected disability; and competent and credible evidence of a nexus (causation or aggravation) between the service-connected disability and the claimed disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).

Medical evidence is often, though not always, required to associate the claimed condition with service or a service-connected disability.  Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine whether the evidence is also "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board additionally must determine whether the evidence also is credible).  Only if evidence is both compete and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (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"")).  See also Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  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.  38 C.F.R. § 3.159(a)(2).  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).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  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 such as actual treatment records).  When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

In ascertaining the competency of lay evidence, lay evidence has been found to be competent with regards 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).

Conversely, laypersons also have been found not to be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

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).

After determining the competency and credibility of evidence, the Board must then weigh its probative value in relation to the other relevant evidence.  Baldwin v. West, 13 Vet. App. 1, 8 (1999).  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 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").

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), citing its decision in Madden, the Federal Circuit Court recognized that that Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the lower Veterans Court has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

Turning now to the facts of this particular case.  Regarding the first requirement for service connection, proof the Veteran has the claimed disability, there is no disputing he has osteoarthritis of his right knee.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  In the absence of this proof, there could be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).  The April 2012 and November 2012 VA compensation examiners provided this diagnosis.  The prior December 2009 VA examination also resulted in a diagnosis of right knee degenerative arthritis (i.e., osteoarthritis), status post arthroscopic medial meniscectomy and debridement of tricompartmental degenerative joint disease.  

Hence, resolution of this appeal turns, instead, on whether this disorder is attributable to the Veteran's military service - either directly, presumptively, or secondarily.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or a disease incurred in service.").  See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

All three potential bases of entitlement must be considered.  See, e.g., Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court (CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. 


The evidence indicates the Veteran had complaints concerning his right knee while in service and received a consequent diagnosis.  His STRs indicate he twisted his right knee in August of 1985 while dancing and resultantly was diagnosed with a partial tear of the medial ligament.  In September 1985 he was sent for physical therapy because of the tear of the right medial collateral ligament.  In May 1991 he was given 3 days of light duty after his right knee gave way due to right medial collateral ligament strain.  In September 1992 he complained of right knee pain status post sprain of the right medial collateral ligament.  An October 1992 X-ray report noted a calcification projecting just medial to medial right femoral condyle, most likely representing  a Pelligrini-Steata calcification.  A mild narrowing of medial compartment of the right knee joint was noted.  A March 1999 MRI noted a normal right knee.  A physical therapy note dated in March 2000 noted complaints of middle of the knee pain that prevented him from performing standing work and increased with exercise.  His April 2000 report of medical history in anticipation of his separation (retirement) from service noted that he had various complaints regarding both knees while in service, but that the 1999 MRI had been normal.  The April 2000 separation examination noted that his knees were normal.  His military service ended later that year, in July 2000.

He initially was scheduled for a VA compensation examination concerning this claim in December 2009.  The examiner diagnosed right knee degenerative arthritis, status post arthroscopic medial meniscectomy and debridement.  However, the examiner stated that she could not provide an opinion regarding whether this disability was related to the Veteran's military service without resorting to mere speculation.  She also noted that "intercurrent injury is unknown."  She did not comment at all on the alternative possibility of a relationship or correlation between the right knee disability and the service-connected left knee disability.

Consequently, the Board determined that December 2009 opinion was inadequate and accordingly remanded this claim in January 2012 for an additional opinion.  In April 2012, the Veteran resultantly was again scheduled for a VA examination to obtain additional medical comment concerning whether his right knee disability is related to his military service - either directly, presumptively, or secondarily by way of his service-connected left knee disability.

The VA compensation examiner designated to provide this opinion indicated he reviewed the claims file for the pertinent history, noting specifically the notations in service of torn ligaments several times, as well as other right knee related injuries and complaints.  But in his opinion, the Veteran's subjective complaints during the examination appeared out of proportion to the objective examination findings.  After diagnostic and clinical testing, however, he confirmed the diagnosis of traumatic arthritis of the right knee, but he nonetheless ultimately concluded this right knee disorder was not caused by or a result of injuries sustained during the Veteran's military service.  Additionally, the osteoarthritis affecting this knee was not caused by, aggravated by, or a result of the service-connected left knee disability.  And in providing the underlying rationale for this unfavorable medical opinion, this VA compensation examiner again referenced the Veteran's STRs, which indicated a normal right knee at separation.  This examiner stated the Veteran had suffered a near fall and was diagnosed with moderate osteoarthritis in June 2009, during which time he worked as a postman and truck driver, with many more "unknown incidental injuries," but did not elaborate on what an incidental injury may entail or when these supposed additional injuries had occurred.  Additionally, the examiner stated there is no objective evidence of the claimed condition's onset in military service or shortly after discharge.

The Board concluded the April 2012 VA examiner's opinion was inadequate in that he had appeared to provide conflicting statements.  In one instance, he indicated the Veteran's numerous injuries in service and complaints concerning his right knee, and then concluded his current disorder did not originate in service.  However, he did not also discuss whether any of those injuries in service may have lead to post-traumatic arthritis.  Aside from this, he merely provided a conclusory statement concerning why the right knee disorder was not attributable to the service-connected left knee disability (i.e., not caused or aggravated on a secondary basis).  He merely stated that it was not caused by, aggravated by, or a result of the left knee disability, without also providing any supporting rationale for this opinion.  Therefore, the Board remanded the claim again and requested addendum opinions.

Addendum opinions with regard to the questions of whether the Veteran's right knee disability was related to the complaints during active duty service, whether his arthritis had manifested within a year of service, and finally whether his right knee disability was caused or aggravated by his service-connected left knee disability were provided in November 2012.  The VA examiner noted the Veteran's STRs, citing the various right knee complaints, as well as the previous VA examinations and associated opinions.  This most recent VA examiner concluded the Veteran's current right knee osteoarthritis was unlikely caused by or a result of a disease, injury, or event during his twenty years of service, including the documented right knee injuries sustained in service.  Her rationale was that, based on a review of the available medical literature and clinical experience, although the Veteran's STRs noted he was treated for a right knee condition several times, the 1999 MRI report and April 2000 separation examination noted a normal knee.  Subsequently, post-service treatment records, including an X-ray report dating approximately seven years after separation from service, in June 2007, also revealed a normal right knee.  The Veteran reported that sometime around April-June 2009 he had a near fall experience and an April 2009 MRI associated with the fall showed torn posterior horn and body of medial meniscus and moderate compartment osteoarthritis with anterior cruciate ligament (ACL) ganglion.  Arthroscopic surgery was subsequently performed.  X-rays in June 2009 revealed moderate osteoarthritis of the right knee, which this VA examiner determined was most likely a residual of the events following the Veteran's self-reported fall in 2008-2009.  As such, this VA examiner determined the Veteran's current right knee disability was the result of the post-service (intercurrent) fall, rather than the injuries or complaints in service.

This examiner then noted that there was no objective evidence of right knee osteoarthritis to a compensable degree of at least 10-percent disabling within the one-year presumptive period following the conclusion of the Veteran's active duty service.  Indeed, the examiner noted, the evidence showed the onset of osteoarthritis was more than seven years after his discharge from service.  The examiner noted as her rationale that a June 2007 X-ray report noted a normal right knee.

Finally the examiner opined that the Veteran's current right knee osteoarthritis was unlikely caused by, aggravated by, or the result of his service-connected left knee disability.  She pointed out that she had reviewed the medical records in making this determination, also the medical literature, and that her opinion was based as well on her clinical experience.  She further provided in rationale that there was no medical literature supporting a cause-and-effect relationship or aggravation between the Veteran's service-connected left knee disability of chondromalacia of the patellofemoral joint with minimal degenerative arthritis and his right knee osteoarthritis.

In deciding this claim, the Board must assess the credibility and weight of all the evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet.App. 362, 367 (2001).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  The responsibility of weighing the probative value of evidence is especially difficult when opinions diverge so come to different conclusions.  But this is not the situation here as all examiners asked to comment on etiology have concluded unfavorably and, in any event, it is entirely within the Board's province to give more probative weight to certain pieces of evidence than others, so long as the Board provides the required reasons or bases.  See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  And, at the same time, the Board is mindful that it cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another.  Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).


In weighing lay evidence, the Board must render a finding with regards to both competency and credibility.  See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006).  See also Dalton v. Nicholson, 21 Vet. App. 23 (2007).  As the Court explained in Coburn, reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  See, too, Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that it was based on history given by the Veteran).

Generally, the degree of probative value that 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 however, and indeed what is most 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 had 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).  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.  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).  So as the Court made clear in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file.  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"); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases."  (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).

The Board, then, may conversely reject a medical opinion that was based on an inaccurate factual premise.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

Based on the evidence in this particular case at hand, the Board finds that service connection for a right knee disorder is not warranted.  Although there certainly is no disputing the Veteran has a right knee disorder and even that he had multiple complaints of right knee related problems during his service, and also received a relevant diagnosis, the overall weight of the evidence still is against finding that his current right knee disability is directly or presumptively related to his active duty service or secondarily related, either, meaning proximately due or the result of or being aggravated by his service-connected left knee disability.  Each of the VA examiners referenced his various right knee complaints in service, so readily acknowledged them, however, they all ultimately did not find any correlation between those problems with this knee in service and the osteoarthritis the Veteran now has in this knee.  In explanation of this disassociation, the November 2012 VA examiner pointed out the Veteran's right knee disability in service apparently had resolved by the time of his discharge (retirement), given the negative MRI on this knee just prior to his discharge and the additionally negative X-ray approximately seven years later, well after his discharge from service.  Additionally, this examiner cited additional injury to this same knee since service, namely, an intercurrent fall, the residuals of which were in her assessment most likely the cause of the Veteran's right knee osteoarthritis.  Consequently, all present-day right knee disability has been disassociated from his service and, instead, attributed to something else entirely.

The examiners also uniformly failed to find that the Veteran had osteoarthritis in his right knee within the required one year of separation from active duty service, so the Board may not presume the osteoarthritis was incurred in service.  In particular, the November 2012 VA examiner cited the June 2007 X-ray taken approximately seven years after separation, which revealed a normal right knee.

Finally, the examiners determined the Veteran's right knee osteoarthritis was not secondarily related to or aggravated by his service-connected left knee disability.  The November 2012 VA examiner stated there were no medical studies supporting a cause-and-effect relationship between the Veteran's left knee disability of chondromalacia of the patellofemoral joint with minimal degenerative arthritis and his right knee osteoarthritis.  

Two opinions are required for secondary service connection claims:

1.  Is the claimed disorder "caused by" or "due to" the 
service-connected disability? AND

2.  Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)?

Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006).  An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation.  Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b).

The November 2012 VA compensation examiner discounted both notions, causation and aggravation.

While none of the opinions of record provide a positive opinion with regard to the Veteran's claim, the Board considers the November 2012 addendum opinion the most probative.  The report reveals the examiner had previously performed a comprehensive examination of the Veteran, referring to the April 2012 VA examination, and provided a full and complete rationale for her opinion, which, again, is where most of the probative value of an opinion is derived.  

In addition, the opinion is highly probative because it reconciles all of the prior opinions and other medical evidence of record.  As held by the Court, "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 the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).  As the November 2012 examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, the Board finds that it is entitled to the most weight regarding the diagnoses and etiology of his claimed right knee disability.

The Board additionally has considered the Veteran's lay statements and testimony in support of his claim and accepts that he is competent to report pain in his right knee as a symptom, indeed, even as a chronic or recurring symptom.  See Jandreau, supra; 38 C.F.R. § 3.159(a)(2).  However, he has not demonstrated the necessary knowledge or expertise to comment on the etiology of his right knee disability and associated pain in relation to his service-connected left knee disability or in relation to the right knee conditions diagnosed during versus since his service.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  Here, the Board did indeed nonetheless request medical nexus opinions on this determinative issue of causation and aggravation, which all were clearly unfavorable to the claim and remain unrefuted.


When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Kahana cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).  But, again, attribution of the Veteran's right knee osteoarthritis to his symptoms in service and consequent diagnosis of tear or sprain of his right collateral medial ligament, or as secondary to his service-connected left knee disability, is not the type of simple matter that is readily amenable to mere lay comment as it falls outside the realm of the competence of this type of testimony.

For these reasons and bases, the preponderance of the evidence is against this claim, in turn meaning there is no reasonable doubt to resolve in the Veteran's favor, and that this claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


ORDER

The claim of entitlement to service connection for a right knee disability, including as secondary to the service-connected left knee disability, is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs