Citation Nr: 1325479 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-24 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for headaches, to include as secondary to service-connected seizure disorder, or degenerative disc disease of the thoracolumbar spine, or other service-connected disability 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1998 to November 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held at the VA RO in Winston-Salem, North Carolina. A transcript of that hearing is associated with the claims file. In December 2012, the Board remanded the issues on appeal, as well as the claim of entitlement to service connection for a lower back condition. In an April 2013 rating decision, the VA Appeals Management Center (AMC) in Washington, DC granted service connection for degenerative disc disease of the thoracolumbar spine. As this action constitutes a full grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. The issue of entitlement to service connection for headaches, to include as secondary to service-connected seizure disorder, or service-connected degenerative disc disease of the thoracolumbar spine, or any other service connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDING OF FACT The probative, competent evidence of record does not demonstrate that a left knee disability is causally or etiologically related to active military service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that an October 2005 letter informed the Veteran of the information and evidence necessary to substantiate the claims for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that VCAA notice as required by 38 U.S.C. § 5103(a) must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). Here, notice of the requirements under Dingess was provided in a January 2007 letter after the initial unfavorable decision in January 2006. However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Following the issuance of the January 2007 letter, the Veteran's claim was re-adjudicated in a July 2007 Supplemental Statement of the Case. For these reasons, the Board finds that the timing of the notice was cured and the duty to notify the Veteran has been satisfied in this case. See Pelegrini, 18 Vet. App. at 120 (2004). The Board also finds that the duty to assist the Veteran has been satisfied with respect to the issue of entitlement to service connection for a left knee disability. The record includes the Veteran's service treatment records, VA treatment records, VA examination reports, and lay evidence. Pursuant to a May 2011 Board Remand, the Veteran was afforded a VA examination in June 2011 in connection with her claim of entitlement to service connection for a left knee disability. The VA examiner reviewed the Veteran's claims file and provided an opinion. However, because the June 2011 VA examiner based the opinion, in part, on the absence of a left knee disorder at the time of separation from service and also did not address the Veteran's reports of in-service injuries and symptoms following service, the Board again remanded the claim in December 2012 for an additional examination. As a result, the Veteran underwent VA examination in March 2013. The record shows the VA examiner reviewed the Veteran's claims file, to include her service treatment records, VA treatment records, and private treatment records, noted the reports of in-service injuries and treatment for the Veteran's left knee, completed a physical examination, and provided a complete opinion. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds the examinations and opinions of record to be sufficient and adequate for purposes of determining service connection. In addition, the Board finds the AMC substantially complied with the remand directives with respect to the issue decided herein. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2010 Travel Board hearing, the VLJ noted the elements that were lacking to substantiate the claims of service connection. The Veteran was also assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to her complaints during service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or her representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had understood the elements necessary to substantiate her claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112 (2004). 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 case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran asserts that her current left knee disability had its onset during active duty and contends that she has had the same symptoms intermittently since her separation from active duty. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A July 1998 individual sick slip shows the Veteran was seen for a jarred knee and ankle. An additional July 1998 service treatment record indicates the Veteran complained of soreness in the left knee and ankle. The impression was rule out patellofemoral pain syndrome (PFPS). A September 1998 service treatment record notes that the Veteran complained of left knee pain for one week. The physician diagnosed overuse syndrome of the left knee. An individual sick slip dated in September 1998 shows the Veteran had a knee injury. An additional September 1998 service treatment record reflects that the Veteran pulled muscles in both knees while lifting weights and exercising. An April 1999 service treatment record reflects that the Veteran complained of sharp muscle pain around her left thigh for a week that extended to all of her left leg. A March 2001 service treatment record indicates the Veteran complained of pain in both knees after falling down the stairs at her new apartment. The assessment was left knee MCL ligament strain. An April 2001 radiologic examination report demonstrates that the Veteran had a history of PFPS in both knees since 1997. In September 2001, the Veteran complained of bilateral knee pain. A January 2003 patient medical history and social service questionnaire shows that the Veteran reported having had arthritis/swollen joints and a knee injury. The Veteran did not specify the limb or knee involved. In August 2003, the Veteran reported knee problems. On examination in September 2003, the Veteran's lower extremities were normal, and on a September 2003 report of medical history, the Veteran reported possible arthritis in her right knee but did not report a history of left knee symptoms. A June 2006 private treatment record indicates the Veteran had full range of movement in all extremities. There was some clicking in the left knee. Dr. R. Ford reported that the Veteran had diffuse joint pains in the low back, knee, wrist, and ankle. Dr. Ford did not indicate to which knee his assessment referred. An August 2006 VA treatment record shows a plan to stretch and strengthen the Veteran's left lower extremity in order to improve the stability of the left knee, as well as tracking of the patella to help decrease pain; however, it appears the VA physician identified the wrong extremity. A review of the record demonstrates the Veteran reported only right knee pain at the time of the examination, and the examination shows findings only with respect to the right knee and leg. An October 2008 private treatment record shows the Veteran had a negative straight leg raise bilaterally. At the May 2010 Travel Board hearing, the Veteran testified that she had fallen on both her knees during training and that they had become sore and painful. She asserted that sometimes they would swell but that it was mostly pain. She was given over-the-counter medication as a result and reported that for a short time she underwent physical therapy. The Veteran reported that her left knee pain only occurred every once in a while. She stated that she did not report her left knee at the time of her original claim for service connection because she was not having left knee pain. The Veteran asserted that the type of pain in her left knee was the same type of pain as the pain in her right knee. She reported that she was never told of a diagnosis of bilateral patellofemoral syndrome during active duty or by VA physicians. The Veteran underwent VA examination in June 2011 in conjunction with her claim of entitlement to service connection for a left knee disability. The VA examiner reviewed the Veteran's claims file. According to the Veteran, she first noticed that she had left knee pain when she landed on her back and hit the back of the knee on a pack in mid-2000. She reported that she went to sick call several times and was diagnosed with a strain, overuse, and a sprain. She was treated with Motrin, which did not help, but reported that her left knee improved afterward. Since that time, the Veteran noticed that her left knee bothered her intermittently and that it had started to worsen in 2005. She reported that her left knee would pop and that her knee became painful when she would drive a stick shift and had to use the clutch. The Veteran stated that she sought treatment intermittently. Currently, the Veteran complained of intermittent flare-ups several times per day that lasted a few minutes and occurred behind the knee cap and posterior middle part of the knee. She denied any radiation but reported sharp to aching pain. The Veteran stated that squatting and prolonged driving were precipitating and aggravating factors. She reported popping with movement every other day, but she denied weakness, stiffness, any additional limitation of motion after a flare-up, deformity, heat, redness, drainage, tenderness to palpation, instability, locking, fatigability, and any loss of motion after repetition. The Veteran denied functional limitations on standing and walking and constitutional symptoms of inflammatory arthritis. On physical examination, there was no heat, redness, edema, or loss of a bone or part of a bone. There was moderate grinding of the anterior knee with range of motion, no deformity or malalignment, no crepitation, no instability, no abnormal movement, no drainage, and McMurray's test was negative. There was some tenderness and moderate guarding with range of motion and stability testing. There was no pain at rest or with movement, but there was retropatellar pain with flexion. Flexion was zero to 135 degrees, with zero to 140 degrees being normal, and extension was to zero degrees, with zero degrees being normal. There was no joint ankylosis or evidence of leg shortening. X-ray examination reflected a normal left knee. The VA examiner diagnosed left knee patellofemoral pain syndrome and opined that it was less likely as not that the current left knee disorder was related to military service. The VA examiner noted the service treatment records concerning the left knee and that the problem list indicated that the left knee was a temporary problem. The VA examiner also found it significant that the September 2003 separation examination did not specifically mention any left knee complaints and that no left knee abnormalities were found on examination. In addition, the evidence of record did not mention any complaints of or treatment for the left knee since service. As a result, the VA examiner found it appeared the Veteran had intermittent, self-limited left knee problems during service with various diagnoses, many of which the VA examiner noted were not the same as the current diagnosis. Further, the VA examiner opined that there was no connection between the last mention of left knee pain in 2002 and the present time, and as a result, no chronic disorder of the left knee was established during active duty that continued to the present time. In March 2013, the Veteran underwent additional VA examination in connection with her claim. The VA examiner noted that the date of onset was September 1998, when the Veteran was seen for overuse syndrome of the left knee. The VA examiner also recorded the additional service treatment records showing treatment for the left knee. There was no history of hospitalizations, neoplasm, constitutional symptoms of arthritis, incapacitating symptoms of arthritis, limitations on standing or walking, and no assistive devices. There was a history of trauma to the joint that involved a strain of the left knee during active duty. Physical examination revealed a normal gait, no abnormal weight bearing, no loss of a bone or part of a bone, and no inflammatory arthritis. Extension and flexion were normal, and there was no objective evidence of pain with active motion. There was no objective evidence of pain following repetitive motion, no additional limitations after three repetitions of motion, and no joint ankylosis. The VA examiner found the Veteran was a 32-year old female within normal limits and overweight due to forces on the knee joint. There was mild increased lateral laxity within normal limits of the left knee joint compared to the right knee joint. The VA examiner noted the June 2011 and March 2013 X-ray examinations showed a normal left knee. The VA examiner diagnosed a left knee within normal limits upon examination and X-ray examination and opined that the left knee condition was not caused by or a result of an injury in military service. The rationale for the opinion was that the Veteran was seen for both knees on occasion during her five years on active duty and that the left knee was treated for overuse and normal wear and tear due to work. The knee was not permanently injured or disabled due to the strain, pulled muscles, or overuse syndromes. Physical examination revealed a left knee within normal limits for the Veteran's age and overweight condition. Range of motion and X-rays were within normal limits. The VA examiner noted that the Veteran had cut back on any activities that would cause further deterioration of the left knee due to her right knee limitations. Further, the VA examiner found the right knee condition did not cause the left knee to worsen. First, the evidence of record demonstrates the June 2011 VA examiner diagnosed left knee patellofemoral pain syndrome, and as a result, the Board finds the Veteran has established a current disability for the purpose of service connection. In addition, the service treatment records demonstrate the Veteran incurred an in-service left knee injury. However, the Board finds the probative, competent evidence of record does not support the finding that the Veteran's left knee patellofemoral pain syndrome is causally related to active service, to include the in-service injury. Here, the Board affords the June 2011 and March 2013 opinions significant probative value with respect to a nexus between the Veteran's current left knee disability and the in-service injury. The evidence demonstrates that the VA examiners reviewed the Veteran's relevant medical history, to include the service treatment records and private treatment records, and the March 2013 VA examiner included consideration of her statements concerning the in-service injury and symptoms since service. The VA examiners also completed physical examinations and other appropriate testing and provided opinions as to the clinical findings. In addition, the March 2013 VA examiner provided an adequate rationale for the opinions stated, relying on and citing to the records reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). First, the June 2011 VA examiner opined that it was less likely as not that the current left knee disability was related to the Veteran's service. Based on the evidence of record, the VA examiner found it appeared the Veteran had intermittent, self-limited left knee problems during service and found it significant that many of the in-service diagnoses were not the same as the current diagnosis. As a result, the June 2011 VA examiner opined that there was no connection between the last mention of left knee pain in 2002 and the present time. Likewise, the March 2013 VA examiner opined that the left knee disability was not caused by or a result of an injury in military service. First, the VA examiner noted that during service, the left knee was treated for overuse and normal wear and tear due to work. However, the VA examiner found the left knee was not permanently injured or disabled due to the strain, pulled muscles, or overuse syndrome. The VA examiner found it significant that current examination revealed a normal left knee. The Veteran is competent to describe symptoms such as pain in the left knee, which she is able to perceive through the use of her senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge). However, a layperson without medical training is not qualified to render a medical opinion regarding the etiology of disabilities and diseases such as left knee patellofemoral pain syndrome. See 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the evidence does not show that the Veteran possesses the requisite training or credentials needed to render a competent opinion as to medical causation of left knee patellofemoral pain syndrome. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Here, the Board finds that the relationship between left knee patellofemoral pain syndrome and an in-service injury is not something for which a layman is competent to provide an opinion. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. Additionally, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There is no post-service evidence of record beyond her own assertions that relates the left knee disability to active duty service. Here, the only competent etiological opinions of record are those of the June 2011 and March 2013 VA examiners, which are negative to the Veteran's claim. The Board notes that in certain circumstances, service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). However, the Federal Circuit recently held that continuity of symptomatology under 3.303(b) applies only to the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). As left knee patellofemoral syndrome is not listed as a chronic disease under 38 C.F.R. § 3.309, the provisions of § 3.303(b) do not apply in this case. Therefore, the Veteran's reports of continuity of symptomatology since the in-service injury are not sufficient evidence to establish service connection for a left knee disability. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a left knee disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not suffice to establish entitlement to the benefit sought, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-56 (1990). ORDER Entitlement to service connection for a left knee disability is denied. REMAND In December 2012, the Board remanded the Veteran's claim of entitlement to service connection for headaches, to include as secondary to her service-connected seizure disorder. In March 2013, the VA examiner opined that the Veteran's headaches were not caused by or a result of a seizure disorder. However, the examiner did not address whether the Veteran's headaches were aggravated by her service-connected seizure disorder. In addition, the VA examiner found that the Veteran's headaches appeared to most likely be related to degenerative changes of the cervical spine and tension headaches. Because the Veteran is now service-connected for degenerative disc disease of the thoracolumbar spine, the Board finds an addendum opinion is necessary to address whether the Veteran's current headaches are secondary to her service-connected low back disability. See 38 C.F.R. §§ 3.159(c)(4), 3.312 (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Arrange for the VA examiner who provided the March 2013 opinion, or, if the examiner is unavailable, a VA examiner with the appropriate expertise, to review the Veteran's claims file and a copy of this Remand. After review of the evidence of record and with consideration of the Veteran's lay testimony regarding her in-service injuries and symptoms since service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that any current headaches were caused or by the service-connected degenerative disc disease of the thoracolumbar spine. The examiner is also requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current headaches were aggravated by the service connected seizure disorder, or the service connected degenerative disc disease of the thoracolumbar spine, or aggravated by any other service-connected disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale for all opinions must be provided. 2. After completing the above development, readjudicate the claim of entitlement to service connection for headaches, to include as secondary to service-connected seizure disorder and to include as secondary to service-connected degenerative disc disease of the thoracolumbar spine. If the benefit sought remains denied, provide the Veteran and her representative with a Supplemental Statement of the Case and an adequate opportunity to respond, and then return the appeal to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs