Citation Nr: 1324717 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 05-36 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee condition. 2. Entitlement to service connection for a left knee condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2000 to January 2002 and his decorations include the Parachutist Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran requested a hearing before a Veterans Law Judge at his local RO via videoconference in his October 2005 substantive appeal, but later withdrew this request in a letter to the RO received in May 2006. In April 2009, September 2010, and September 2011, the issues were remanded for additional development. In September 2012, the Board requested a medical advisory opinion from the Veterans Health Administration (VHA) regarding the etiology of the Veteran's bilateral knee condition. See 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(a). The opinion was prepared in November 2012. In November 2012, the Board provided the Veteran and his representative a copy of the medical expert opinion and provided them an additional opportunity to submit or identify pertinent evidence or argument, and he has done so. The Veteran's representative provided additional argument in January 2013. In February 2013 and May 2013, the issues were remanded for additional development. FINDINGS OF FACT 1. The Veteran failed to report to VA examinations in May 2013 and June 2013 to evaluate his service connection claims for right and left knee conditions. 2. Service treatment records document a hard parachute landing fall but are negative for complaints or treatment related to any knee disability. The preponderance of the evidence shows that the Veteran's left and right knee disabilities were not present in service or until many years thereafter and are not related to service or to an incident of service origin, to include a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.655 (2012). 2. The criteria for service connection for a left knee condition have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in June 2003 and April 2004 prior to the initial rating decision. A May 2006 letter also included notice of the type of evidence necessary to establish a disability rating or effective date for the issues under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). The claims were last adjudicated in June 2013. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records. The Veteran was also afforded VA examinations and VA obtained an advisory opinion from the Veterans Health Administration. The Veteran failed to report to VA examinations in May 2013 and June 2013. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf and he also has declined a hearing. As such, the Veteran will not be prejudiced by a decision on the merits of his claims. Service Connection Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; 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."). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). As an initial matter, the Board notes that the evidence establishes that the Veteran has current right and left knee disabilities. Specifically, August 2009, October 2010, and October 2011 VA examination reports show diagnoses of bilateral knee strain and bilateral patellofemoral syndrome. Thus, the analysis to follow will center on whether any such bilateral knee disability is related to military service. The Veteran's DD Form 214 reflects that he received a Parachutist Badge and that his military occupational specialty was health care specialist for six months. Service treatment records document that he experienced a hard parachute landing fall during Airborne School. They also show treatment for shin splints in June 2000 but are negative for complaints or treatment for any knee disabilities. Similarly, private records dated during service while he was on convalescence leave show treatment for other disabilities but are negative for knee complaints or treatment. There are no post-service medical records showing any knee complaints, treatment, or diagnosis. As stated, the Veteran was afforded VA joint examinations in August 2009, October 2010, and October 2011. Imaging of the knees in August 2009 was normal. The August 2009 and October 2010 VA examiners diagnosed bilateral knee strain, but declined to provide a nexus between the Veteran's bilateral knee strain and his service. The October 2011 VA examiner diagnosed patellofemoral syndrome and opined that it was not etiologically related to military service, including the parachute jump. The examiner noted that patellofemoral syndrome is an overuse syndrome and pointed out that the Veteran did not complain of knee problems in service. An additional VHA opinion was obtained in November 2012 from an orthopedic surgeon. Following a review of the claims file, the orthopedic surgeon diagnosed bilateral mild patellofemoral syndrome and opined that the condition is less likely than not incurred in or caused by service. The examiner noted that patellofemoral syndrome is typically atraumatic in origin. Regarding the diagnosis of bilateral knee strain, the examiner noted it to be a short-term, self-limiting diagnosis and would not be expected to last 12 years (from 2000 to 2012). It was further noted that there was no evidence of structural abnormality of either knee related to trauma from parachute jumping, nor was there evidence to support a diagnosis of arthritis in either knee. In February 2013, the Board remanded the Veteran's claims to afford him an additional examination and obtain another medical opinion. He was scheduled for an examination in April 2013; however, he failed to report for the examination. Following a showing of good cause by the Veteran, the claims were remanded again in May 2013 and another VA examination was scheduled for June 2013. Once again, however, the Veteran declined to report for his examination. As such, VA is legally precluded from scheduling him for a new examination in support of his claims. 38 C.F.R. § 3.655(b). Accordingly, the Board has no alternative but to decide those claims on the basis of the existing record, which does not show that service connection is warranted for either a right knee or left knee disability. Based on the evidence of record, the Board finds that the preponderance of the evidence shows that service connection for right and left knee disabilities is not warranted. At the outset, the evidence does not show that arthritis was diagnosed to a compensable degree within a year of service, or at any time during appeal period. On the contrary, arthritis was not present on August 2009 imaging of the bilateral knee, nearly eight years post service. Furthermore, the Veteran's bilateral knee strain and bilateral patellofemoral syndrome may not be presumed to have been incurred in service, as they are not recognized chronic disabilities for which service connection may be awarded on a presumptive basis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus"); 38 C.F.R. §§ 3.307, 3.309. In this case, the only evidence of a nexus (i.e., link) between the current bilateral knee disabilities and military service submitted by the Veteran, is his own contention. While the Veteran may be competent to report knee symptoms, and arguably competent to some degree to give a medical opinion given his six month history of serving as a health care specialist in service, the Board finds that his contention is outweighed by the VA examiners' negative opinions in August 2009, October 2010, October 2011, and in particular, November 2012. Cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds the November 2012 opinion to be adequately sufficient given that it was offered by an expert in the field of orthopedics, based on a review of the Veteran's claims file, and supported by rationale. There is no other medical evidence of record, specific to the Veteran's case, which links the Veteran's current right and left knee disabilities to his period of active service or to a service-connected disability. The Board acknowledges that an Internet article was submitted showing a possible link between PTSD and pain. However, pain is not a disability for which VA compensation can be awarded. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, the article does not provide a nexus between this Veteran's current knee disabilities and his PTSD. Therefore, it cannot serve to establish service connection. The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claims and that doctrine is thus inapplicable. Accordingly, the appeal is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a right knee condition is denied. Service connection for a left knee condition is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs