Citation Nr: 1325376 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 07-31 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left lower extremity arthritic disorder to include left leg degenerative joint disease and left knee arthritis. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from April 1969 to June 1972. In March 2005, the RO denied service connection for left leg degenerative joint disease. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Waco, Texas, Regional Office (RO) which, in pertinent part, determined that new and material evidence had been received to reopen the Veteran's claim of service connection for left leg degenerative joint disease and denied the claim on the merits. In April 2010, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In July 2010, the Board recharacterized the issue on appeal as whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for left leg degenerative joint disease and remanded the Veteran's appeal to the RO for additional action. In an October 2011 written statement, the Veteran indicated that he had moved to Hawaii; appointed the Hawaii Office of Veterans Services as his accredited representative; and "respectfully requests he be given his BVA hearing for his appeal by videoconference at the Honolulu Regional Office." In March 2013, the undersigned Acting Veterans Law Judge determined that the Veteran had not submitted good cause or other explanation to support his request for a second hearing before a Veterans Law Judge and denied his hearing request under the provisions of 38 C.F.R. §§ 20.700, 20.1304 (2012). In March 2013, the Board determined that the March 2005 rating decision denying service connection for left leg degenerative joint disease was not final and remanded the Veteran's appeal for additional development of the record. The action requested by the March 2013 Board remand was accomplished and the case was returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. The Board has reframed the issue of service connection for left knee degenerative joint disease as entitlement to service connection for a left lower extremity arthritic disorder to include left leg degenerative joint disease and left knee arthritis in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). FINDING OF FACT 1. Service connection is currently in effect for left leg fracture residuals. 2. Left lower extremity arthritic disorder was not objectively shown during active service or at any time thereafter. CONCLUSIONS OF LAW 1. A left lower extremity arthritic disorder to include left leg degenerative joint disease and left knee arthritis was not incurred in or aggravated by active service and arthritis may not be presumed to have originated during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2012). 2. A left lower extremity arthritic disorder to include left leg degenerative joint disease and left knee arthritis is not proximately due to or the result of the Veteran's service-connected disability. 38 U.S.C.A. §§ 510, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA has issued several VCAA notices to the Veteran including a December 2004 notice which informed him of the evidence generally needed to support a claim of service connection and the assignment of an evaluation and effective date for an initial award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. The December 2004 VCAA notice was issued to the Veteran prior to the March 2005 rating decision from which the instant appeal arises. The Veteran's claim was readjudicated in the September 2007 statement of the case and the multiple supplemental statements of the case issued to the Veteran. Therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA. The Veteran was afforded multiple VA examinations. The examination reports are of record. The Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge. The hearing transcript is of record. In accordance with the Board's March 2012 Remand instructions, the Veteran was afforded an April 2013 VA knee and lower leg examination. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The April 2012 VA examination report reflects that all relevant records were reviewed and opinion requested was advanced. All identified and available relevant documentation has been secured and all relevant facts have been developed to the extent possible. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. II. Service Connection The Veteran asserts that service connection for a left lower extremity arthritic disorder is warranted secondary to his service-connected left leg fracture residuals and/or inservice trauma. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The claimed disorder, an arthritic disorder, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety days or more during a period of war and arthritis (degenerative joint disease) becomes manifest to a degree of ten percent within one year 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. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for left leg fracture residuals. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Veteran's service treatment records make no reference to a left lower extremity arthritic disorder. A July 2003 evaluation from W. Ross, M.D., conveys that the Veteran complained of left knee pain. He presented a history of an inservice motor vehicle accident and associated left knee injury. No left lower extremity disorder was diagnosed. VA X-ray studies of the left knee dated in May 2004 note a clinical history of "[left] knee for [degenerative joint disease]-old trauma." The studies revealed a "normal joint." In his November 2004 informal claim for service connection, the Veteran advanced that service connection for left leg degenerative joint disease was warranted secondary to his service-connected left leg fracture residuals as it "can be directly related to my [service-connected] condition." A September 2005 VA neurosurgery evaluation conveys that the Veteran complained of left knee problems and left leg weakness. He reported that he had undergone left knee arthroscopic surgery. His prior left leg fracture residuals were noted. An assessment of "chronic left knee pain, post old injury" was advanced. A January 2006 VA evaluation states that the Veteran complained of left leg pre-tibial pain of two months' duration. On examination of the left lower extremity, the Veteran exhibited tenderness over the tibial surface from the knee to the ankle. An assessment of pre-tibial pain was advanced. At a February 2006 VA examination for compensation purposes, the Veteran complained of left lower extremity pain. Contemporaneous X-ray studies of the left tibia and fibula were reported to reveal no abnormalities. The Veteran was diagnosed with a "history of remote soft tissue trauma/fracture lower left leg (no disease found)." At a March 2007 VA examination for compensation purposes, the Veteran complained of left knee pain and instability of 10 years' duration. The Veteran was diagnosed with "fracture of left leg, good healing, no residuals." The examiner commented that: He has developed for the past 10, 15 years [degenerative joint disease] of multiple joints and of the spine as well as frequent gout attacks. Above sequence of events and remarks as well as the lack of deformity at the fractured site make the present left knee condition less likely than not secondary to the fractured leg. In his March 2007 notice of disagreement, the Veteran advanced that he "had an X-ray complied with approx. 2 years ago which showed the arthritis in" his left knee. A February 2008 VA treatment record states that the Veteran complained of left knee pain. An assessment of "[chronic] knee pain DJD? X-ray of knee joint ordered." VA X-ray studies of the left knee dated in February 2008 revealed no abnormalities. VA clinical documentation dated in April 2008 and May 2008 conveys that the Veteran complained of left knee pain which began shortly after his inservice left leg fracture. He reported that he has "developed remarkable arthritis" of the left knee. An assessment of "left knee internal derangement" was advanced. At the April 2010 hearing before the undersigned Acting Veterans Law Judge sitting at the RO, the Veteran testified that his treating VA physicians had informed him that he had left knee arthritis secondary to his service-connected left fracture residuals. A January 2011 VA X-ray study of the left knee revealed mild joint space narrowing which had "developed since the prior study of 2/8/2008" and no "evidence of fracture, dislocation, or arthritis." An August 2012 VA treatment record states that the Veteran presented a history of "left knee pain/DJD." At an April 2013 VA examination for compensation purposes, the Veteran complained of chronic left knee pain and instability. The Veteran was diagnosed with "medial malleolus" and a "normal left knee." The examiner opined that: He had a small left medial malleolus fracture in 1972 that completely healed without sequelae. None of his current lower extremity problems are related to this healed fracture. All his leg and knee symptoms are related to nonservice-connected co-morbidities. The Board has reviewed the probative evidence of record including the Veteran's testimony and written statements on appeal. Service connection for left leg fracture residuals has been established. A chronic left lower extremity arthritic disorder was not identified during active service or at any time thereafter. Multiple post-service VA and private physical and X-ray evaluations of the left lower extremity revealed no chronic arthritis. While the Veteran was found to have "left knee internal derangement" in 2008 and "left knee joint space narrowing" on a January 2011 VA X-ray study, the findings are not associated with any specific left knee disability including arthritis and are not supported by prior or subsequent clinical findings. The radiological finding of left knee joint space narrowing was specifically determined not be "evidence of arthritis;" and was not otherwise attributed to a specific disability. Indeed, the most recent VA evaluation revealed no left lower extremity abnormalities other than the Veteran's service-connected left leg fracture residuals. The Veteran asserts that service connection for a left lower extremity arthritic disorder is warranted as such disability arose secondary to his service-connected left leg fracture residuals or, in the alternative, as the result of an inservice trauma. He asserts that he has been diagnosed with left knee arthritis by treating VA physicians. The evidence of record belies that assertion. The Veteran is competent to state that he has recurrent left knee pain. However, to the extent that the Veteran asserts that he has arthritis or other left lower extremity disability related to active service and/or his service-connected left leg fracture residuals, the Board finds that the Veteran's lay statements do not constitute competent evidence. The Veteran is not competent to offer a diagnosis of a disease as complex as arthritis or to offer an opinion regarding the existence or etiology of his claimed left lower extremity arthritic disability and/or its relationship to active service and to his service-connected disabilities. He has not offered any medical qualifications. Arthritis is diagnosed primarily by X-ray and imaging studies such as computerized tomography and magnetic resonance imaging. Such observations and testing are not amenable to observation by a lay person. The question of the existence and/or etiology of such a complex disability is too complex to be addressed by a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A left lower extremity arthritic disorder to include left leg degenerative joint disease and left knee arthritis was not shown during active service or at any time thereafter. For these reasons, the Board finds that service connection for the claimed disorder is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Therefore, the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left lower extremity arthritic disorder to include left leg degenerative joint disease and left knee arthritis is denied. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs