Citation Nr: 1325067 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-01 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a low back disability, to include as secondary to a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to March 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In June 2011, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. The case was previously before the Board in January 2011 and October 2011 when the claim for service connection for a left knee disability was reopened and remanded along with the claim for service connection for a low back disability. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. A chronic left knee disability, currently diagnosed as degenerative joint disease, was not present in service or until years thereafter and is not etiologically related to any incident of active duty service. 2. A chronic low back disability, currently diagnosed as degenerative disc disease and a herniated disc, was not present in service or until years thereafter, is not etiologically related to any incident of active duty service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. A left knee disability, currently diagnosed as degenerative joint disease, was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A low back disability, currently diagnosed as degenerative disc disease and a herniated disc, was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)(holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection is also provided for a disability, which is proximately due to, the result, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Left Knee The Veteran contends that service connection is warranted for a left knee disability as it was incurred due to an injury during active duty service. In June 2011, the Veteran testified that he injured his knee while serving aboard the USS HARRY E. YARNELL in November or December 1967. While participating in a battle readiness drill, he fell after climbing down a ladder and slid across the ship deck puncturing his left knee on a piece of sharp metal. There was no doctor aboard the ship, but the Veteran was seen by a medic and his knee was treated with a salve and bandage. The Veteran testified that he has experienced left knee pain since the 1967 injury. The record establishes the presence of a current left knee disability. VA treatment records from the Denver and Black Hills VA Medical Centers (VAMCs) document treatment for arthritic changes in the left knee as well as a meniscal tear. The Veteran has also undergone treatment with several private physicians and orthopedists due to left knee complaints. In June 2002 and April 2005 he underwent surgery to repair a torn left medial meniscus and was recently diagnosed with left knee degenerative joint disease upon VA examination in April 2010. A current disability is therefore demonstrated. Service treatment records also establish an in-service injury. The Veteran's June 1965 and October 1965 enlistment examinations were negative for any knee abnormalities and the Veteran denied a history of arthritis or a "trick" or locked knee. In January 1969, the Veteran was provided an orthopedic consultation based on a three month history of pain and tenderness of the left tibial tubercle. The examining orthopedist diagnosed Osgood-Schlatter disease of the left knee with accessory patella, but concluded that no real treatment was necessary. If the Veteran's symptoms did not improve in four weeks, the orthopedist recommended removing the accessory fragment. A month later, at the orthopedic clinic in Corpus Christi, Texas, the Veteran was again examined for a history of left knee pain for one and a half years and Osgood-Schlatter disease. Physical examination of the left tibia tubercle was slightly tender and the physician noted that surgery would have no beneficial effect. The Veteran's knee was treated with a cortisone injection, and later in February 1969 he reported having relief of pain following the injection. The Chief of Orthopedics recommended not excising the knee as surgery did not yield good results and the Veteran's pain was expected to resolve in two to three years. The Veteran was provided a separation examination in March 1969. Although Osgood-Schlatter disease of the left knee and tibia was noted on the examination report, it was not considered disabling. Although service records do not document the 1967 injury reported by the Veteran, he clearly received treatment for left knee pain during active duty. He was diagnosed with Osgood-Schlatter disease and treated with a cortisone injection. A left knee/tibia abnormality was also observed at the March 1969 separation examination, though it was not considered disabling. The Board therefore finds that service records establish the presence of the second element of service connection-an in-service injury. Regarding the third element of service connection, a nexus between the Veteran's current disability and the in-service injury, the Board notes that service records do not indicate such a link. While Osgood-Schlatter disease was noted on the March 1969 separation examination, it was not considered disabling and no chronic disabling condition was diagnosed. The Veteran's complaints of left knee pain responded well to a cortisone injection provided in February 1969, and his condition was expected to fully resolve. There is also no evidence of left knee arthritis within a year from the Veteran's separation from active duty service to allow for service connection on a presumptive basis. See 38 C.F.R. § 3.307, 3.309. A July 1970 promotion physical performed in association with the Veteran's naval reserve service did not document any abnormalities of the lower extremities, and the Veteran denied experiencing arthritis, any joint or bone abnormality, lameness, or a "trick" or locked knee. In fact, the earliest post-service evidence of complaints related to the left knee dates from February 1993, 24 years after discharge, when the Veteran consented to surgery to remove some bone fragments of the left tibial tubercle. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the Veteran's left knee arthritis was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection is possible for certain chronic diseases, such as arthritis, under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has reported a continuity of symptoms of left knee pain since active duty service. Recent VA treatment records document the Veteran's reports of left knee pain since the claimed in-service injury in 1967 and the Veteran has provided a similar history in statements to VA. Lay statements, such as those made by the Veteran, are considered competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, Vet. App. 398 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In this case, the Board finds that the Veteran's reported history of continuous left knee pain since service is not credible. While he contends that he incurred a puncture wound to the left upper tibia while serving on active duty in 1967, service records do not document any injuries to the left knee. The Veteran was first examined and treated for left knee pain in January 1969, two years after the alleged injury, and at that time he reported only a three month history of knee pain. The Veteran never reported a history of a knee injury while receiving treatment during service, and service records only document findings of Osgood-Schlatter disease. Although the Veteran contends that the diagnosis of Osgood-Schlatter disease during service was a misdiagnosis, the fact remains that service records do not document any evidence or complaints of a left knee puncture injury. Similarly, the Veteran denied any history of knee problems on the report of medical history accompanying a July 1970 reserve service promotion examination. In a September 2008 statement, the Veteran reported that he specifically did not mention the previous knee injury during the July 1970 examination to ensure that he received a promotion, but physical examination of the knee at that time was also entirely normal. The Veteran also noted in September 2008 that he requested an extension of his active duty service to seek treatment for his left knee injury, but personnel records show that the Veteran's request for a duty extension was for the purpose of continuing his graduate school education. The post-service treatment records dated prior to the Veteran's claim for compensation also contradict his more recent statements describing the history of the claimed left knee disability. The Veteran's original claim for service connection for a left knee disability was received by VA in March 2002; before that date, he never reported injuring his knee during service while receiving medical treatment. He underwent surgery in 1992 with a private physician for removal of bone fragments from the left tibia, but records associated with this surgery are not included in the claims file. In May 1997, the Veteran was examined by a private orthopedist and reported a five year history of bilateral knee pain. While receiving treatment with another private orthopedist in February 2002, the Veteran specifically denied any previous history of trauma to the knees. In fact, it was not until March 14, 2002, the same date his claim for compensation with VA was dated, that the Veteran described an in-service injury to the left knee. On that date, he was seen for the first time by a VA primary care physician and stated that he had knee pain and instability due to trauma in the military. The Board finds that the Veteran's statements and history made for compensation purposes many years after separation from active duty are not credible in light of the clearly contradictory contents of the service and post-service medical records. In addition, the complete absence of complaints or treatment for decades after service also reduces the credibility of the Veteran's more recent statements describing a continuity of symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that lay statements were not rendered insufficient by the absence of confirming medical evidence, but that the evidence could serve to support a finding that lay statements were not credible). As the Veteran's history of continuous left knee pain since service is not credible, service connection is not warranted under 38 C.F.R. § 3.303(b) (2012). The Board also finds that the weight of the competent medical evidence is against the claim for service connection. The record contains several medical opinions weighing in favor of the Veteran's claim; his VA orthopedists and primary care doctor have consistently attributed his current left knee arthritis to the reported injury during active service, and two private physicians also provided opinions in support of the claim in May 2009 and January 2010. However, the Board finds that these medical opinions are of little probative value as they were based on an inaccurate history of the disability based almost solely on the Veteran's own reported history, a history the Board has deemed not credible. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). It is clear that the Veteran's VA physicians did not review any of his service treatment records or medical evidence dated prior to March 2002 before issuing their medical opinions linking the current left knee arthritis to the reported injury during service. Similarly, while the May 2009 and January 2010 private medical opinions were rendered by physicians who initially treated the Veteran in 1993, the May 2009 opinion clearly states that "few records were available for this report" and none of the cited available records include any dating from active duty service. The January 2010 private opinion also does not describe any specific review of service or post-service records and is mostly concerned with describing a possible relationship between the Veteran's claimed left knee and low back disabilities. The VA and private doctor's failure to consider the service treatment records and earlier post-service medical evidence is significant given the lack of documentation of the alleged knee injury until the day the Veteran's claim for compensation was filed with VA. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993); see also Swann v. Brown, 5 Vet. App. 229 (1993). The failure to consider this evidence renders the opinions of little probative value. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that presumption of credibility did not arise because physician's opinion was based upon "an inaccurate factual premise" and thus had "no probative value" since it relied upon Veteran's "account of his medical history and service background). In contrast, weighing against the claim for service connection is the highly probative opinion of an April 2010 VA examiner. After performing a complete review of the claims file and a physical examination, the VA examiner concluded that the Veteran's current left knee disability was not related to any incident of active duty service, to include the reported 1967 puncture injury. This opinion was supported with a lengthy and well-reasoned rationale which included specific reference to the service and post-service medical evidence, as well as findings from the physical examination of the left knee. The April 2010 VA examiner also considered the Veteran's statements describing his claimed in-service injury and continuous knee pain, but found that the objective evidence was more persuasive and contradicted the Veteran's reported history. The April 2010 VA medical opinion is therefore entitled to significant probative weight. See Nieves, supra. The Board has considered the testimony of the Veteran connecting his current left knee disability to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as knee pain, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's left knee arthritis was more than 20 years after his separation from military service. In addition, the weight of the competent medical evidence is clearly against the claim. The Board has considered the Veteran's reports of a continuity of symptoms since service, but finds that this history is not credible. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disability and his active duty. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Low Back The Veteran contends that a chronic low back disability was incurred secondary to a left knee disability. He testified in June 2011 that his knee condition caused misalignment of his spine which resulted in lumbar degenerative disc disease. As discussed above, the Board has determined that service connection is not warranted for a left knee disability. Therefore, service connection for a low back disability as secondary to the left knee is not possible. See 38 C.F.R. § 3.310 (2012). The Board will now determine whether entitlement to service connection for a low back disability is warranted as directly due to service. The record establishes a current disability; the Veteran has received treatment for chronic low back pain with various private and VA health care providers throughout the claims period and he underwent spinal fusion surgery in 1991 and January 2002. He was also diagnosed with degenerative disc disease and a herniated disc of the lumbar spine upon VA examination in April 2010. With respect to the remaining elements of service connection, the Veteran's service records are entirely negative for evidence of a lumbar spine injury or disability. The Veteran never complained of low back pain and his spine was normal upon physical examination for separation in March 1969. He also testified in June 2011 that he did not incur an injury to his low back during active duty. There is also no competent evidence of a link between the Veteran's current lumbar spine disability and any incident of active duty service. There is no medical evidence of a low back condition until March 1992, more than 20 years after the Veteran's discharge from service, when he consented to surgery to treat a herniated disc. Additionally, none of the Veteran's private or VA physicians have provided a medical opinion in support of his claim, and there is simply no competent evidence of a nexus between service and the Veteran's degenerative disc disease. The Veteran has not contended that service connection is warranted for a low back disability on a direct basis, and the Board must conclude that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in July 2007 and November 2011 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the July 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice, specifically notice pertaining to secondary service connection, was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were readjudicated in the November 2012 SSOC. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran was provided a proper VA examination and medical opinion in April 2010 in response to his claims. Although the April 2010 VA examiner did not address whether the Veteran's low back disability was incurred due to active duty service, the Board finds that such an opinion is not required by the duty to assist. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). In this case, the record is entirely negative for competent evidence of a possible association between the claimed low back disability and the Veteran's active duty service. In fact, the Veteran testified in June 2011 that he did not injure his back during service and he has never alleged a relationship between the low back disability and active duty. Thus, a VA opinion with respect to service connection on a direct basis is not required. VA has also obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, records from the Social Security Administration (SSA), and available private medical records. Although the Veteran has reported undergoing treatment with some private doctors whose clinical records are not included in the claims file, February 2009 and June 2009 statements from the Veteran indicate that these records are not available for procurement. The Board also finds that VA has complied with the January 2011 and October 2011 remand orders of the Board. In response to the Board's remands, the Veteran was provided a hearing before the Board at the RO in June 2011. Additional medical records from the SSA and various VA facilities were also associated with the record. Furthermore, the Veteran was provided complete notice of VA's duties to notify and assist him in the development of his claims in a November 2011 letter. The case was then readjudicated in a November 2012 SSOC. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a left knee disability, currently diagnosed as degenerative joint disease, is denied. (CONTINUED ON NEXT PAGE) Entitlement to service connection for a low back disability, currently diagnosed as degenerative disc disease and a herniated disc, to include as secondary to a left knee disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs