Citation Nr: 1324531	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  08-20 546	)	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 disability.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  See 38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from May 1980 to May 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which reopened the Veteran's previously denied claims for service connection for residuals of a right knee injury and residuals of a left testicle injury; and denied service connection for posttraumatic stress disorder (PTSD), residuals of a right knee injury, and residuals of a left testicle injury.  In August 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in June 2008.

In February 2011, the Board declined to reopen the Veteran's claim for service connection for a left testicle injury, reopened his claim for service connection for a right knee disability, and remanded the claims for service connection for PTSD and the right knee to the Appeals Management Center (AMC) for further evidentiary development, including obtaining outstanding Social Security Administration (SSA) and VA and private treatment records and providing the Veteran with VA examinations.  In June 2012, the Board again remanded the Veteran's right knee and PTSD claims to the AMC for further evidentiary development, including obtaining updated VA and private treatment records, providing the Veteran with a new PTSD VA examination, and obtaining an addendum opinion for the Veteran's right knee.  The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

A review of the record reflects that the AMC obtained all required SSA, VA, and private treatment records.  Additionally, the Veteran was provided a right knee examinations in February and September 2011 with a June 2012 addendum opinion.  

Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board.

With regard to the Veteran's remanded claim for service connection for PTSD, in a December 2012 rating decision, the AMC granted service connection for PTSD.  This grant of service connection is considered a full grant of the benefits on appeal for the Veteran's PTSD claim.  As such, the claim of entitlement to service connection for PTSD is no longer before the Board.  See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).


FINDING OF FACT

The evidence of record does not show that the Veteran has a right knee disability that is the result of a disease or injury in active duty service.


CONCLUSION OF LAW

A right knee disability was not incurred in or as a result of active duty service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  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.  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Prior to initial adjudication of the Veteran's claim, a letter dated in March 2006 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187.

Additionally, the March 2006 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records, VA treatment records, SSA records, VA examination reports and addendum opinions, and Veterans Health Administration (VHA) medical opinion are in the file.  Private treatment records have been obtained to the extent possible.  The Veteran has not identified any additional private or other treatment records that he wishes for VA to obtain in association with his claim.

With respect to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

The record indicates that the Veteran was afforded VA examinations to evaluate his right knee in June 2006, February 2011, and September 2011 with a June 2012 VA addendum opinion and an April 2013 addendum opinion from VHA.  The results from those examinations and the addendum opinions have been included in the claims file for review.  The examinations and addendum opinions involved a review of the claims file, including the service treatment records, a thorough examination of the Veteran (VA examinations only), and opinions that were supported by sufficient rationale.  Therefore, the Board finds that the VA examinations and addendum opinions, taken together, are adequate for to decide the claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).

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, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

The Veteran alleges that he currently suffers from a right knee disability as a result of his active military service.  Specifically, he claims that he injured his right knee in service and that he has had right knee pain since that time.  He, therefore, believes that service connection is warranted.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  See 38 U.S.C.A. § 1131 (West 2002).  However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease.  If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity.  See 38 C.F.R. § 3.303(b) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain diseases, such as arthritis, become manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).

To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition.  See Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).

Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. T his includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).

"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence").  It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable."  See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).

The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service.  See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993).  The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  See 38 C.F.R. § 3.304(b)(1) (2012).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012).

In this case, there is no indication in the record that any right knee disability was noted on the Veteran's enlistment examination in April 1980.  Upon his entry into service, the Veteran reported no history of right knee problems and the examiner did not identify any lower extremity abnormalities.  Throughout service, the Veteran contended that his right knee began suddenly, following an acute injury, in 1982.  The only service treatment record to indicate a possible pre-service injury was a July 1982 orthopedic consultation report that noted a diagnosis of "old O-S right knee."  However, there is no indication whether this diagnosis refers to a pre-service injury or whether it constituted a disability upon entrance.  Additionally, a September 2011 VA medical opinion and April 2013 VHA opinion addressed this diagnosis and concluded that there was no evidence, even if the Veteran had a preexisting right knee diagnosis of Osgood-Schlatter's disease, that such a diagnosis was permanently worsened in service.  In light of these limitations, the Board finds that the in-service notation of "old O-S" does not constitute clear and unmistakable evidence that the Veteran had an existing chronic right knee disability prior to service.  As such, the Board finds that the presumption of soundness is not rebutted and the Veteran is considered to have been sound upon entrance to active duty.  Thus, the Board will address the Veteran's service connection claim on a direct basis and not on the basis of aggravation of a pre-existing disability.

Initially, the Board notes that there is no indication that the Veteran was treated for or diagnosed with arthritis of the right knee within a year of service so as to support a grant of service connection on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  Notably, despite multiple prior x-rays, the Veteran was not diagnosed with arthritis of the right knee until 2004, over 20 years after his discharge from service.  As such, the Veteran is not afforded the presumption of service connection for arthritis of the right knee.  See 38 C.F.R. § 3.307 (2012).  Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, a veteran is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Thus, the Board will proceed with a decision on the issue of service connection for a right knee disability based on the holding in Combee.

Post-service VA and private treatment records show the Veteran's complaints of right knee pain, as well as diagnoses of osteoarthritis of the right knee.  As such, the first element of Hickson is met.

A review of the service treatment records shows that the Veteran was treated in service for right knee pain and diagnosed with a right knee bruise, old Osgood-Schlatter's disease, water on the right knee, and chondromalacia of the right patella.  As such, the second element of Hickson is met.

Although an in-service injury and current disability have been established, as noted above, this is not sufficient to warrant service connection.  There still must be competent medical evidence of a nexus between the Veteran's in-service right knee complaints and his current right knee disability.  See Hickson, supra.

The Veteran first underwent a VA examination to evaluate his right knee in September 1983, shortly after discharge, in conjunction with a prior service connection claim.  At that time, he complained of right knee pain and a history of trauma to the right knee.  However, x-rays performed at that time were negative and the examiner noted that there were no right knee abnormalities.  The examiner did not provide an opinion on the etiology of the Veteran's complaints of pain at that time.

The Veteran was next examined in July 1991, also in conjunction with a prior claim.  The examiner diagnosed the Veteran with a history of right knee joint swelling, recurrent, with the right knee joint remaining stable and with no limitations in the range of motion.  X-rays showed bilateral infrapatellar old Osgood-Schlatter's disease and could not rule out calcifications.  The July 1991 examiner also failed to provide an opinion on the etiology of the Veteran's complaints.

The Veteran was next examined in June 2006, in conjunction with his instant claim.  At that time, he complained of progressively worsening right knee pain.  The examiner diagnosed the Veteran with chondromalacia patella of the right knee.  He concluded that the Veteran's right knee disability was not related to service because he had not submitted any new evidence that showed a medical nexus since the 1986, 1991, and 2004 prior denials of service connection.

The Veteran was then examined in February 2011.  At that time, he complained of continued right knee pain, limited ability to stand or walk, and intermittent but frequent use of a cane and brace.  The examiner concluded that the Veteran's only congenital right knee disorder was his diagnosis of old Osgood-Schlatter's disease, but indicated that this was not the cause of his current right knee complaints.  He diagnosed the Veteran with chondromalacia patella of the right knee and concluded that it was not related to his military service because there was no medical documentation of a chronic right knee condition on discharge or until 2004, twenty years after separation.  A September 2011 addendum opinion from the same examiner reiterated that the Veteran's right knee was normal on discharge and that there was no evidence of a worsening of any preexisting old Osgood-Schlatter's disease during service.  He also indicated that a contusion to the patella - the Veteran's in-service injury - would not be expected to lead to degenerative joint disease of the right knee - the Veteran's current diagnosis.

The February/September 2011 VA examiner provided another addendum opinion in June 2012.  He again concluded that the Veteran's current right knee disability was not related to service because his separation examination was normal.  In light of the normal examination at separation and the lack of treatment or diagnoses until 2004, he was unable to provide a medical nexus.

Finally, the Veteran was afforded a VHA opinion in April 2013.  The VHA orthopedic surgeon also concluded that the Veteran's current right knee disability, including Osgood-Schlatter's disease and degenerative joint disease/arthritis, is not related to his military service.  The VHA examiner noted the lack of documentation of a significant knee problem until 2004.  This is consistent with the earlier examinations showing a normal right knee at separation and in the years after service.  The orthopedic surgeon also noted that Osgood-Schlatter's is a self-limited problem that goes away and does not correlate with chronic internal knee problems.  To the extent that this diagnosis was identified in service, it does not establish a medical nexus.  Finally, the VHA examiner explained that the Veteran's osteoarthritis of the right knee is consistent with his age and activity, not his military service.

The medical evidence also includes VA treatment records that are consistent with the VA examinations/opinions and VHA opinion, noting the Veteran's right knee complaints and in-service history.  However, none of these treatment records provide a medical nexus.

In this case, the only other evidence which purports to link the Veteran's current right knee disability to his military service consists of the statements of the Veteran and his representative.  Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  While the Veteran can describe what he experiences (in this case, knee pain), he is not able to provide competent evidence as to the etiology of his right knee disability.  Providing such an opinion requires medical expertise in the cause of degenerative joint disease of the knees and the implications of a finding of Osgood-Schlatter's disease.  The Veteran and his representative have no such expertise.  See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).

The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology.  In this case, the Veteran has complained of right knee pain since service.  However, the VA examiners and VHA orthopedic surgeon considered these complaints in forming their opinions.  Although they acknowledged his complaints of right knee pain since service, they still found that his current diagnoses were not related to his in-service injury in light of the normal post-service findings and lack of treatment until 20 years after discharge.  As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology.

As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service, including his in-service right knee injury, and his current right knee disability.  Although the Board notes the Veteran's current disability and in-service injury, without sufficiently probative evidence of a medical nexus, service connection cannot be granted.

Accordingly, the Board finds that the claim of entitlement to service connection for a right knee disability must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for a right knee disability is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs