Citation Nr: 1324940 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-00 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right knee disorder, including as secondary to the service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his fiancée ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1991 to March 1993 and from January 1994 to March 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that in relevant part denied the Veteran's request to reopen a previously-denied claim of service connection for a right knee disorder. The Veteran and a witness testified before the undersigned Acting Veterans Law Judge at a July 2009 hearing that was held at the RO ("Travel Board" hearing). A copy of the testimony has been associated with the claims file. In February 2010 the Board reopened the claim and remanded the case to the RO for further development. The Board remanded again in August 2011 and April 2012 for additional development. That development having been completed, this case is once again before the Board. FINDING OF FACT The Veteran's right knee condition is not related to an injury in service or to his service-connected left knee disability. CONCLUSION OF LAW A right knee condition was not incurred in or aggravated by service, nor was it caused or aggravated by his service-connected left knee disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran received complete VCAA-compliant notice, to include the disability-rating and effective-date elements of a service connection claim, prior to the September 2006 rating decision on appeal. At any rate, he has not shown any prejudice in regard to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) and VA treatment records have been obtained and associated with the claims file. In August 2011 the Board remanded the claim for an addendum opinion by the previous VA examiner, which has been provided. The Board finds on review that the RO substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Acting Veterans Law Judge identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection for a right knee disorder, and the Veteran and his witness volunteered his subjective symptoms and employment history during the period under consideration. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. Neither the Veteran nor his representative has made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see 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); 38 C.F.R. § 3.303. Furthermore, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, three elements must be met: (1) current disability; (2) service-connected disability; and (3) nexus between current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). The regulation pertaining to secondary service connection was amended during the course of the Veteran's appeal, effective October 10, 2006, in order to conform VA's regulation to the Court's decision in Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b) (2007-2009). This requirement was not contained in prior versions of the regulation. See 38 C.F.R. § 3.310 (2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Because the Veteran submitted his claim prior to October 10, 2006 (the effective date of the amended provisions), the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. When a regulation changes and the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. 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. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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, id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The Veteran contends that he has a right knee disorder that is due to a disease or injury that occurred during his service. Alternatively, he contends his right knee disorder was caused or aggravated by his service-connected residuals of a left knee injury. In a December 2005 statement, the Veteran claimed that he injured his knees just before he left service in 2001 and only saw a doctor once. He further claimed that a doctor informed him that "nots" had developed on his knees bilaterally and that they were related to running on hard pavement. New shoes were recommended to alleviate the pain, but the Veteran stated that he still has "nots' on both of his knees today. In his July 2009 hearing testimony, the Veteran testified he injured his knee initially in the Navy when he tripped while running up a flight of stairs during a fire drill, and that the condition was subsequently aggravated by being made to constantly run during subsequent service in the Army. He also asserted that his right knee disorder is related to his service-connected left knee disability. The Veteran acknowledged that the only treatment he received for his claimed right knee disorder while in service was painkillers. He asserted that he has a current diagnosis for Osgood-Schlatter Disease in his right knee, which is the same condition for which he is service-connected in his left knee. A review of the Veteran's STRs revealed no complaints or treatment for a right knee injury. A February 1998 treatment note showed a complaint of pain in the left knee, anterior side, for which he was administered pain medication. However, no discussion of the right knee was included. A review of the Veteran's VA outpatient treatment records shows that he began receiving treatment for his knees in February 2005, for which he complained of bilateral knee pain and stated that he had been diagnosed with Osgood-Schlatter Disease in the past. He requested a knee brace and told to continue using ice and Motrin. Treatment records continued to show complaints of knee pain, but no discussion of relationship to military service. In March 2006, the Veteran was assessed with Osgood-Schlatter Disease bilaterally. In November 2006, the Veteran was seen for complaints of worsened right knee pain, but this was attributed to a recent forklift injury at work. In April 2008, the Veteran reported complaints of instability and was diagnosed with arthralgias. In October 2009, it was reported that the Veteran was using braces to treat his instability. In June 2006, the Veteran was provided with a VA examination. It was noted that the Veteran stated he had experienced pain and intermittent swelling in his right knee during military service due to constant running. The examiner noted that pain was at the severity of 8 on a scale of 1 to 10 and that there is also episodic swelling and stiffness. The Veteran reported flare-ups with static positioning, such as sitting or standing in excess of 15 to 20 minutes. He used a brace and took medication. Range of motion testing revealed a motion of 0 to 90 degrees. Pain and additional limitation of motion from 85 to 90 degrees was noted upon repetition. His gait was guarded and antalgic. The Veteran was diagnosed with right knee patellofemoral pain syndrome, moderately severe. X-rays were noted as normal. The examiner opined that the Veteran's right knee condition was more likely than not related to the right knee condition for which he was treated in service. It was noted that the Veteran was treated for his right knee during service based upon the Veteran's subjective history. In July 2010, the Veteran was provided with an additional VA examination. He stated that he had intermittent problems with his knee throughout service, but that he began having consistent problems right before he got out of the military, at which time he was in physical therapy. The Veteran also stated that he had to have his knee drained of fluid in 1996 for swelling due to no specific injury. His condition has been stable since inception and he treats with medication and exercise with fair results. He complained of instability, pain, stiffness, and weakness with a one-time effusion manifested by swelling and tenderness. The examiner noted that the Veteran had an antalgic gait and bumps consistent with Osgood-Schlatter Disease. Clicks, snapping, and a patellar abnormality of abnormal tracking and suprapatellar click with active range of motion were also noted. The Veteran had pain at rest and posterior medial discomfort with palpation. Range of motion testing revealed a flexion of 105 degrees and extension of 0 degrees with no objective indication of pain. There was no additional loss of motion or pain after repetition. The Veteran was diagnosed with right patellofemoral pain syndrome with significant effects on occupation and mild effects on driving, moderate effects on chores, shopping, exercise, recreation, and traveling, and preventing sports. The examiner opined that it was less likely than not that the Veteran's current right knee condition was caused by or a result of military service. In support, the examiner provided that there was no documentation in the Veteran's STRs of a right knee injury or disorder. It was further stated that, although Osgood-Schlatter Disease can result from exercise, its normal onset was in developing children. The examiner found that Osgood-Schlatter Disease was not caused by or incurred in military service. An addendum opinion to the July 2010 VA examination was obtained in August 2011. Upon reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's right knee condition was caused by, a result of, or aggravated by his service-connected left knee condition. In support, it was provided that the medical evidence of record did not establish that the Veteran's acute left knee condition aggravated his right knee. Analysis Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a right knee condition on both a direct and secondary basis, so the appeal must be denied. Initially, the Board notes that the opinion in the Veteran's July 2010 VA examination creates the possibility that, because Osgood-Schlatter Disease usually begins in developing children and the Veteran has this condition, the Veteran could have possibly had this condition prior to service. However, as no right knee impairment was found upon his examination for service entrance, he is presumed to have been in sound condition at that time as far as the right knee is concerned. See 38 U.S.C.A. §§ 1111. Therefore, in light of this finding and the fact that the Veteran and his representative have not advanced a claim under this theory, a discussion of aggravation of a pre-existing condition is not relevant to the present claim and will not be further discussed. In regard to the issue of direct service connection, as the evidence shows that there is a current disability, based upon the Veteran's diagnoses of Osgood-Schlatter Disease, patellofemoral syndrome, and arthralgia, the issue thus turns upon whether there was an in-service incurrence or aggravation of a disease or injury and, if so, whether there is medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson, 12 Vet. App. at 253. Here, there are no complaints or treatment of any right knee disability during service. Moreover, following his discharge from the service, the first evidence of any kind referring to any problem in his right knee was in February 2005, nearly four years after the Veteran's discharge from military service. The Board notes that the passage of time between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board further acknowledges the Veteran's contentions as to right knee pain with an onset in service, and continuous symptoms since service. The Veteran is competent to offer evidence as to facts within his personal knowledge, such as the occurrence of an in-service injury, and his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As indicated, the Veteran has asserted continuity of right knee symptoms since service. However, evidence of continuity of symptoms is only for consideration in regard to disorders recognized as "chronic" under 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, while the Veteran's account of continuous symptoms since service is probative, it is not a sufficient basis for granting service connection in the absence of supporting medical opinion. Even granting the Veteran's statements regarding onset probative value, the Board finds that there is no competent evidence or opinion even suggesting that there exists a medical nexus between any currently diagnosed right knee disability and service. The June 2006 VA examination provided a positive nexus opinion, but that opinion was refuted by the subsequent VA examiner's addendum opinion in August 2011. It appears on review that the examiner's opinion in June 2006 was based solely upon the Veteran's subjective statements regarding an injury in service without any corroborating support in the STRs; the statements of medical professionals concerning a veteran's medical history related by the veteran as to remote events are of inherently less value than contemporaneous clinical records. Harder v. Brown, 5 Vet. App. 183, 188 (1993). Further, the examiner in June 2006 did not provide a clinical rationale for his opinion, whereas the VA examiner in August 2011 did so. The Board accordingly finds the August 2011 addendum opinion to be the more probative under the criteria of Nieves-Rodriguez. None of the VA treatment records of record reflect any such etiological discussion relating the Veteran's current right knee disability to military service. On the contrary, the only record discussing etiology specifically was found in the November 2006 record, in which it related the Veteran's worsening right knee condition to a recent fork lift injury at work. Neither the Veteran nor his representative has presented or identified any such existing medical evidence or opinion establishing a positive etiology. The Board acknowledges that the Veteran's post-service treatment records make occasional reference to a right knee disability with an onset in service. However, this notation appears to be only the medical provider recording the Veteran's own reported medical history, without comment. As such, this notation does not constitute competent evidence of the required nexus. The mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Grover v. West, 12 Vet. App. 109, 112 (1999); Leshore v. Brown, 8 Vet. App. 406, 409 (1995). The Board finds that no in-service injury or continuity of any injury has been shown. As such, the issue of nexus in the context of direct service connection does not even become material. See Hickson, 12 Vet. App. at 253. In regard to the issue of secondary service connection to the Veteran's service-connected left knee disability, as the evidence shows that there is a current disability, based upon the Veteran's diagnoses of Osgood-Schlatter Disease, patellofemoral syndrome, and arthralgia, as well as a service-connected disability, left knee disability, the issue turns upon the question of a determination of a nexus between the two. Wallin, 11 Vet. App. 509. Although the Veteran has provided lay testimony positing a link between his left and right knee conditions based upon a showing of bilateral Osgood-Schlatter Disease, the medical evidence of record has failed to show a positive correlation between the two conditions. While the onset and continuity of symptoms are within the competence of a layperson, the etiology of a knee disorder is a complex medical question that is not within the competence of a layperson. Kahana, 24 Vet. App. 428 (2011). Based on the evidence and analysis above, 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, the preponderance of the evidence is against the claim that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53- 56. ORDER Entitlement to service connection for a right knee disorder is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs