Citation Nr: 1325498 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-18 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1987 to July 1994, from February 2004 to August 2004, and from January 2005 to December 2005; with periods of active duty for training (ACDUTRA) with the United States Marine Corps Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. This matter was previously before the Board in April 2011 and January 2013 when it was remanded for further development. It has now returned to the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. The issue of entitlement to a disability evaluation in excess of 20 percent for a service-connected low back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's current right knee disability is not etiologically related to his active service, to include any right knee injury therein or any service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right knee disability, to include as secondary to a service-connected low back disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2006, May 2006, April 2011, and January 2013 that fully addressed all notice elements; additionally, the Board notes that the March 2006 and the May 2006 letters were sent prior to the RO's initial decision in this matter. These letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. These letters also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the 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). The Board finds that all necessary development has been accomplished and therefore appellate review of the claim addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and pertinent postservice treatment records. Further, in accordance with the Board's April 2011 and January 2013 remands, the Veteran was afforded appropriate VA examinations and additional VA treatment records and U.S. Marine Corps Reserve records were obtained. Further, in the April 2011 remand instructions, the Board requested that the RO obtain verification of the Veteran's period of ACDUTRA in July 2000. The Board notes that of record is a certificate, provided by the Veteran, noting the Veteran successfully completed a two week training course on August 5, 2000. Under these circumstances, the Board finds that there has been substantial compliance with the April 2011 and January 2013 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the August 2010 Board hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the nature and etiology of the disability in question, specifically as to whether the Veteran had incurred a right knee injury while on active service and what symptomatology he experienced postservice. The Veteran was assisted at the hearing by an accredited representative from the Paralyzed Veterans of America and additional testimony was provided by the Veteran's spouse. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims files that might have been overlooked, or was outstanding, that might substantiate the claim, and specifically inquired as to any records since service in which he might have mentioned that his right knee problems began in service, and whether there were any VA treatment records or outstanding service treatment records. The Veteran testified that there were additional records regarding his period of ACDUTRA in 2000, as well as records pertaining to a diagnosis of a current right knee disability, that were not associated with the claims files at the time of the hearing. The VLJ informed the Veteran that the record would be held open for sixty days in order to provide him and his representative the opportunity to obtain those records and submit them to be considered with his claim. The Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria and Analysis The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) 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 current disability. See 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) (2012). In a claim for secondary service connection, the regulations provide that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In this case, the Veteran has claimed that he is entitled to service connection for a right knee disability; as such disability was incurred in or caused by his active service. At his August 2010 Board hearing, the Veteran testified that he injured his right knee while on a period of ACDUTRA in 2000, and that he has continued to suffer from right knee problems since that time. Alternatively, in a December 2012 statement, submitted through his representative, the Veteran asserted that his service-connected low back disability aggravates his right knee disability. A review of the Veteran's service treatment records (STRs) shows that in July 2000, while on a period of ACDUTRA, the Veteran sought treatment for a right knee injury. He reported that he stepped in a hole while marching and injured his right knee and that the injury continued to cause discomfort for a week before he sought treatment. On examination, there was no swelling, but there was minor pain to palpation. The Veteran was assessed with iliotibial tendonitis and prescribed naproxen and light duty for 24 hours. He was advised to follow-up at the clinic in two days. A subsequent July 2000 STR shows that the Veteran was seen for follow-up treatment for his right knee pain and it was noted that he reported his pain was improving. He reported that he only felt pain in his right knee when he put weight on his right leg, but that he was able to drill and that he wanted to participate in an upcoming night navigation course. He reported that he used a wrap for support. He was advised to continue use of the naproxen, to rest and ice his knee whenever possible, and to return to the clinic should his condition worsen. There is no indication from the STRs that the Veteran sought additional follow-up treatment. Further review of the STRs reveals February 2001, November 2002, and November 2003 Annual Certificates of Physical Condition. On each of these certificates, the Veteran specifically responded "no" when asked if he had any physical defects that might restrict his performance on active duty or prevent his mobilization. Additionally, on the February 2001 certificate, he responded "no" when asked if he had an injury within the past 12 months which had required hospitalization or caused him to be absent from school, duty, or civilian occupation for more than 3 consecutive days; he responded "no" when asked if he was under a physician's care at that time, or had been in the past 12 months; and he responded "no" when asked if he had taken any prescription medication in the past 12 months. On the report of medical history associated with an August 2004 reserve enlistment examination, the Veteran did not report any history of a right knee injury, and he specifically responded "no" to whether he had "knee trouble." On an August 2005 post-deployment health screening the Veteran did not report experiencing any swollen, stiff, or painful joints while on deployment. He did report suffering from muscle aches while on deployment, but denied suffering from them at the time of his post-deployment health screening and provided no indication that the muscle aches were related to his right knee, or even his right leg. Additionally, on his September 2009 separation examination, the Veteran denied any history of knee trouble. VA treatment records associated with the claims file show that the Veteran receives intermittent VA treatment for several medical conditions. An April 2002 VA treatment record notes that the Veteran complained of arthritis; however, he did not specify as to where he suffered from symptoms of arthritis. On examination, his gait was normal; he showed no scoliosis or other misalignments or asymmetry. He made no specific complaints regarding his right knee and no right knee disability was diagnosed. The remainder of the VA treatment records are silent for any complaints, treatment, findings, or diagnoses related to a right knee disability. Of record are private treatment records from February 2004 to December 2005 that show the Veteran was seen by Dr. D.N. and Dr. M.H. for complaints of low back pain and right hip pain. The Veteran was referred for physical therapy and private treatment notes of record indicate he received physical therapy from October 2005 through May 2006 for his low back and right hip. These treatment records provide no indication that the Veteran ever complained of pain in his right knee or related to his treatment providers his July 2000 in-service right knee injury. In an August 2010 letter, Dr. M.H. stated that the Veteran had injured his knee while on active service in 2000 and that he continued to have ongoing pain related in part to an iliotibial syndrome. However, there are no treatment notes of record indicating that Dr. M.H. ever treated the Veteran for any such right knee pain. The Veteran was afforded a general VA examination in September 2006. At that time it was noted that he had right knee pain that was referred from his back, but that he had no history of a primary injury to the right knee. September 2006 X-ray revealed no acute bony abnormalities, fractures, effusions, or significant degenerative changes. There was no diagnosis of a right knee disability made at that time. The Veteran was afforded a VA examination in April 2011. At that time, the Veteran reported symptoms of giving way, pain, stiffness, weakness, incoordination, decreased speed of joint motion, swelling, and tenderness in his right knee. The examiner noted that the Veteran had an antalgic gait. Magnetic resonance imaging scan (MRI) of the right knee revealed no acute or significant focal abnormality. The examiner diagnosed iliotibial tendonitis and opined that such disability was less likely than not related to the Veteran's active service, to include his July 2000 injury therein. The examiner explained while there was evidence that the Veteran injured his right knee on active service in July 2000, there was no evidence that he sought any further treatment for the injury, either while still on active service, or since his separation. The examiner noted the August 2010 letter from the Veteran's private physician which noted that the Veteran suffered from an iliotibial syndrome; however, on the April 2011 VA examination, the Veteran had no local tenderness over the distal portion of the iliotibial band at the lateral knee. Further, the examiner explained that without evidence of continued treatment for the July 2000 knee injury, it was his opinion that such injury was unlikely to be related to the Veteran's current complaints of right knee pain. The Veteran was afforded another VA examination in April 2013 to determine if his right knee disability was aggravated by his service-connected low back disability. After examination, the examiner opined that it was less likely than not that the Veteran's right knee disability was aggravated by his service-connected low back disability. The examiner explained that upon examining the Veteran, the Veteran stated that his right knee disability and low back disability were not related; that the two disabilities were two separate issues, caused by two separate injuries, and that he was not sure as to why the examination had been scheduled. Upon review of the evidence of record, the Board finds that the Veteran is not entitled to service connection for a right knee disability, to include as secondary to a service-connected low back disability. In this regard, the Board notes that while the evidence shows that the Veteran suffered a right knee injury in July 2000 while on ACDUTRA, there is no subsequent medical evidence, either while still on active service or following his separation, showing that he ever sought treatment for or complained of any right knee problems until he filed his claim in February 2006. Further, even after filing his claim of entitlement to service connection, there is no evidence showing the Veteran receives treatment for a right knee disability. The Board notes that the Veteran's private physician, Dr. M.H. has submitted a letter indicating the Veteran suffers from right knee pain related to an iliotibial syndrome; however, there are no treatment records to support Dr. M.H.'s conclusory finding. Further, while it may very well be true that the Veteran suffers from an iliotibial syndrome, Dr. M.H.'s letter does not provide a sufficient explanation of rationale to support a nexus opinion between any currently diagnosed right knee disability and the Veteran's right knee injury while on active service, and is therefore of low probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical opinion that contains only data and conclusions is accorded no weight). The only competent (medical) evidence that addresses the matter of a nexus between the Veteran's current right knee disability and his active service is the report of the April 2011 VA examiner, who opined that it was less likely than not that the Veteran's right knee disability was related to his active service, to include the right knee injury therein. The examiner noted that he had conducted a review of the claims file, and explained that while the Veteran's private physician had stated that the Veteran suffered from an iliotibial syndrome, there were no symptoms of such at the time of the April 2011 examination. The examiner explained that review of the July 2000 treatment records of the Veteran's right knee injury indicated that the injury was minor and as the Veteran sought no treatment following his July 2000 right knee injury for any complaints of knee pain; it was unlikely that his current knee pain was related to the in-service injury. Further, the April 2011 examiner provided a second opinion in April 2013 with regard to secondary service connection. At that time, the Veteran himself stated that his right knee injury was not related to his service-connected low back disability and that the two disabilities were completely separate issues. Based on the Veteran's statements, the examiner opined that the Veteran's right knee disability was not aggravated by his service-connected low back disability. As the examiner, a medical doctor, expressed familiarity with the record and provided an explanation and rationale for his opinions, his opinions are probative evidence in this matter. Because there is no medical evidence to the contrary, the April 2011 and April 2013 opinions are persuasive. The Board acknowledges the Veteran's statements made at his hearing that his current right knee disability is related to his injury sustained on active service. However, the evidence of record tends to contradict this assertion. The Board notes that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Here the Board notes that following his in-service right knee injury, the Veteran was afforded several medical examinations, the reports of which are associated with his STRs. These medical examinations provided the Veteran with the opportunity to report his history of a right knee injury and to further report any ongoing symptomatology of that injury. However, the Veteran repeatedly denied suffering from any knee problems, or associated symptomatology. Further, the Board notes that in February 2004 the Veteran began to seek private treatment for a low back and right hip disability, and was referred to physical therapy. These records contain no indication that the Veteran complained of or sought treatment for a right knee disability. It is reasonable to assume, that had the Veteran been suffering from right knee symptomatology at that time, he would have complained of such to his private treatment providers. Additionally, prior to filing his February 2006 claim of entitlement to service connection, the Veteran filed a claim for service connection in July 2002 for various disabilities that did not include a right knee disability. As the in-service injury to his right knee occurred in July 2000, if a right knee disability was related to the in-service injury, it is logical to assume that such disability would have been present at the time of the Veteran's July 2002 claim. Thus, while the Board has considered the Veteran's lay testimony, and recognizes that he is competent to testify concerning observable symptoms such as right knee pain, the Board finds the Veteran's statements to be not credible and are therefore of limited probative value. In sum, there is no medical evidence showing that the Veteran has ever sought postservice treatment for a right knee disability; the VA examiner has competently opined that the Veteran's current right knee disability is not related to the in-service right knee injury or a service-connected low back disability; and the Veteran's lay statements regarding the etiology of his current right knee disability are not supported by the evidence of record, and have therefore been found not credible. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disability, to include as secondary to a service-connected low back disability. Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a right knee disability, to include as secondary to a service-connected back disability, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs