Citation Nr: 1324372 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 08-30 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a lumbar spine disorder secondary to bilateral knee disorders. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active duty service from November 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in February 2010. A transcript of this proceeding has been associated with the claims file. This case was previously before the Board in January 2012 and February 2013. In January 2012 the Board remanded all of the issues on appeal for additional evidentiary development. In February 2013 the Board denied service connection for a low back disorder on a direct basis and remanded the issues of entitlement to service connection for a low back disorder on a secondary basis and entitlement to service connection for bilateral knee disorders. The bilateral knee disorder issues were remanded for an addendum medical opinion and the low back disorder (secondary) issue was remanded for additional secondary service connection notice and because this issue was inextricably intertwined with the bilateral knee disorder issues. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Osgood-Schlatter disease and patellar tendonitis were not affirmatively shown to have been present during service and are unrelated to an injury, disease, or event in service. 2. Arthritis of the knees was not objectively shown within one year after the Veteran's military service. 3. There is no competent evidence of record linking a currently existing low back disorder to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a right knee disorder has not been met and arthritis of the knee may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for a grant of service connection for a left knee disorder has not been met and arthritis of the knee may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for a grant of service connection for a low back disorder on a secondary basis has not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is claiming entitlement to service connection for bilateral knee disorders and a low back disorder. Specifically, the Veteran claims that he injured his knees on two occasions during his military service. First, the Veteran has claimed that he injured his knees during basic training while participating in survival escape and evasion exercises. Second, the Veteran has claimed that he injured his knees during active duty on another occasion while playing softball at Fort Meade. In support of the Veteran's claim, he submitted an undated statement in February 2012 from R.S. in which R.S. wrote that he visited the Veteran at Fort Meade between 1972 and 1974 and remembered that the Veteran had a swollen knee due to it having been injured in the company softball game in which the Veteran had played. The Veteran contends that he was treated at sick call for his knees on both occasions. The Veteran contends that his low back disorder is secondary to his bilateral knee disorders. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Substantially compliant notice was sent in August 2006 and March 2013 letters and the claims were readjudicated in an April 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. These letters also provided the Veteran with notice of what type of information and evidence was needed to establish his claims. See Dingess/Hartman, 19 Vet. App. at 486. In addition, the duty to assist the Veteran has also been satisfied in this case. Attempts to obtain the Veteran's service treatment records were made without success. These attempts have been memorialized in the claims file and the Veteran was provided with notification that the service treatment records were missing and unavailable. The Veteran's identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to the bilateral knee issues, VA provided the Veteran with a VA examination which was conducted to determine the etiology of his claimed bilateral knee disorders. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The February 2012 VA medical examination along with the April 2013 addendum opinion, is adequate for purposes of this decision as it is based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, clinical examination of the Veteran, and review of the claims file. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With regard to the low back disorder issue, proper secondary notice was sent in March 2013. In this regard, there has been substantial compliance with January 2012 and February 2013 remand instructions as the RO provided the Veteran with an adequate VA examination and adequate secondary notice. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board does note that, after the January 2012 Board remand, the Veteran submitted three completed Authorization and Consent to Release Information forms (VA Form 21-4142s) specific to records from Dr. J.A.D.V. (back, 2002-2007), Dr. L.M.V.C. (back and legs, 2006), Dr. J.A.M.L., and the Corporation Del Fondo Seguro Del Estado Caso Num in February 2012. It is unclear whether these physicians are private physicians or VA physicians. The authorization permitted by all three VA Form 21-4142s expired after 180 days. The Board observes that the RO did not request the authorized records within the allotted 180 days and that the forms therefore expired. Pursuant to the February 2013 Board Remand, the RO sent the Veteran a letter dated March 2013 in which it requested that he sign and complete Authorization and Consent to Release Information forms (VA Form 21-4142) as to any outstanding medical records which are potentially pertinent to his claims. The Board recognizes that the Veteran did not respond to the March 2013 and did not resubmit updated VA From 21-4142s. The duty to assist is not a one-way street. If the Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). Accordingly, VA has fulfilled its duty to assist the Veteran in obtaining medical records. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim of entitlement to service connection for bilateral knee disorders and/or a low back disorder on a secondary basis, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a) . For those conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, arthritis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310, which provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service- connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity due to the natural progress of the disease from the current level. Analysis Initially, the Board notes that the Veteran's service treatment records have not been obtained. In October 2007, the RO made a formal finding that the Veteran's service treatment records were unavailable for review. When service medical records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. Under these circumstances, the Court has held that VA has a heightened duty to assist a claimant in developing his claim when the Veteran's service treatment records are not available for any reason, including because they were destroyed in the fire at the NPRC in the early 1970s. This duty includes the search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's active military service concluded in 1974. He submitted a claim for service connection for bilateral knee disorders and a low back disorder in August 2006. A review of the claims file shows treatment for a back disorder as early as 2001. Significantly, a March 2001 private X-ray report of the lumbar spine shows suspected mild degenerative disc disease at L3-L4 and L4-L5 with suspected lumbar muscle spasm. In 2006 the Veteran sought Social Security disability benefits due to his back disorder. A November 2007 award letter from Social Security shows that the Veteran was granted disability benefits effective May 2006 for slipped disks, radiculopathy, carpal tunnel syndrome, and depression. In an April 2007 VA treatment record the Veteran reported a history of back pain since 2000. In an April 2010 VA treatment record the Veteran reported a post-service work-related back injury. A November 2011 VA treatment record shows complaints of back/knee pain. Pursuant to the January 2012 Board remand, VA arranged to have the Veteran undergo an examination in February 2012 to determine the nature and etiology of the claimed knee disorders. Physical examination was conducted. The pertinent diagnosis from the examination was bilateral Osgood-Schlatter disease and patellar tendonitis. The examiner opined that the disorders were not at least as likely as not due to military service. The examiner's rationale was that there was no documentation of knee pain or a knee condition during military service and that there was no evidence of a knee condition or complaints of knee pain the first year after separation from service. In February 2013, the Board found that the rationale for the February 2012 VA knee examination to be less than probative. Specifically, the Board wrote that the Veteran informed the examiner that he injured his knees during basic training while participating in survival escape and evasion exercises. He also informed the examiner that he injured his knees during active duty on another occasion while playing softball at Fort Meade. The Veteran informed the examiner that he was treated at sick call for his knees. Despite the above history provided by the Veteran, the examiner who conducted the 2012 VA examination apparently discounted the history. The examiner found a lack of medical documentation in the service treatment records and as well as a lack of medical documentation immediately after discharge to be support his determination that the Veteran did not have bilateral knee injuries which were etiologically linked to his active duty service. The Board found that the Veteran can attest to factual matters of which he had first-hand knowledge, e.g., falling on his knees, being treated during active duty for knee complaints and experiencing pain in service and thereafter. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board found no reason to question the Veteran's veracity with regard to his reports of knee symptomatology he experienced while on active duty and thereafter and also found that the Veteran's assertions in this regard constituted competent evidence which could not be overlooked. The Board cited to Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition) and found the Feburary 2012 VA examination opinion to be inadequate, and requested that another VA examination with medical opinion-which takes into account all pertinent evidence, to include the Veteran's assertions- to resolve the claims for service connection for left and right knee disorders. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). In its January 2012 remand instructions, the Board specifically directed that an examination of the Veteran's lumbar spine and knees was to be conducted and the examiner was to consider the Veteran's lay statements regarding the progression of the claimed disabilities and comment on whether the Veteran's statements made sense from a medical point of view. Upon reviewing the February 2012 VA examination report the Board found that this was not accomplished and ordered that an addendum to the report be obtained which would include the requested opinion. Pursuant to the February 2013 Board remand, the case was returned to the February 2012 VA examiner for an addendum opinion. In an April 2013 VA addendum report the examiner again opined that the Veteran's bilateral knee disorders were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reviewed the claims file as well as the VA electronic medical record. The examiner noted the Veteran's history of in-service trauma to his knees as well as the lay statement from R.S. which confirmed in-service trauma to the knees. The examiner indicated that the Veteran denied continuity of knee symptoms since his military service and there was no evidence of treatment for a knee problems for many years after service. The examiner wrote that the Veteran was diagnosed in February 2012 with bilateral Osgood-Schlatter and patellar tendonitis which were over use type injuries to the knee, not due to trauma. The examiner indicated that Osgood-Schlatter is mostly seen in adolescence and was a boney overgrowth at the tibial tubercle which became characteristically painful over time. Patellar tendonitis is usually seen in people who frequently run or jump, not characteristically seen with anterior knee trauma (as related by the Veteran and is painful to palpation or painful when running or climbing stairs or jumping and was felt at the patellar tendon. The examiner opined that diagnoses of Osgood-Schlatter and patellar tendinitis were not at least as likely caused by anterior knee trauma. Knee injury or knee pain was not at least as likely as not documented in the claims file and no continuity of knee pain was documented in the claims file other than the Veteran's lay statement. Moreover, the examiner noted that while the Veteran did complain of knee pain in February 2006 when he began coming to the VA hospital for treatment and had an X-ray done to his knees, a copy of a May 2006 Disability Determination Program (social security physical examination) is negative for complaints of knee pain among the eleven listed physical complaints. The same document also failed to list any acute or chronic knee problem or conditions in the diagnosis section. The Board has first considered whether service connection is warranted on a presumptive basis. However, neither Osgood-Schlatter disease nor patellar tendonitis are explicitly recognized as "chronic" diseases so as to warrant service connection on a presumptive basis, or based on a demonstration of continuity of symptomatology. See 38 U.S.C.A. § 1112 (West 2002); Walker; 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2012). Even if arthritis would be shown to be present, there would be no basis upon which to grant service connection presumptively as arthritis is not shown to have existed during the first post service year. The claim is also denied on a direct basis. First, there is no medical evidence of a bilateral knee disorder in service or shortly after service. As above, the earliest evidence of complaints of knee pain is dated in 2006, approximately 32 years after service, and the earliest evidence of an actual knee disorder is dated in 2012, approximately 38 years after service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Moreover, the February 2012/April 2013 VA examiner opined that the Veteran's bilateral knee disorders were not related to the Veteran's military service. Specifically, the examiner opined that even if the Veteran injured his knees in service as he alleged, the types of knee disorders the Veteran currently has are not related to trauma and are instead related to over use. As the examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to his opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). There are no other contrary medical opinions of record. While the Veteran contends that his bilateral knee disorders are related to military service, the Board accords his statements regarding the etiology of these disorders little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of such disorders of the knees involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In addition, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan, supra. While the Veteran claims that he has been experiencing bilateral knee problems since service, the May 2006 Disability Determination Program (social security physical examination) is negative for complaints of knee pain among the eleven listed physical complaints. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, supra. In the instant case, the Board finds the Veteran's statements to lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest and, therefore, accords no probative weight to such contentions. The Board finds the Veteran's statements regarding a continuity of symptomatology to be not credible. Therefore, based on the foregoing, the Board finds that service connection for bilateral knee disorders is not warranted on a presumptive or direct basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral knee disorders. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. With regard to the Veteran's claim for service connection for a low back disorder on a direct basis, the Board notes that this was previously denied in February 2013. With regard to the Veteran's claim for service connection for a low back disorder as secondary his bilateral knee disorders, the Board notes that service connection bilateral disorders is not in effect and the Veteran is not service connected for any other disorders. Therefore, service connection for a low back disorder on a secondary basis is also not warranted. As the Board finds that the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107. ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. Service connection for a lumbar spine disorder secondary to bilateral knee disorders is denied. ____________________________________________ Joaquin Aguayo-Pereles Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs