Citation Nr: 1325663 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-20 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased disability rating (evaluation) in excess of 20 percent for Type II diabetes mellitus. 2. Entitlement to an increased disability rating in excess of 30 percent for the service-connected peripheral neuropathy of the right upper extremity. 3. Entitlement to an increased disability rating in excess of 10 percent for the service-connected peripheral neuropathy of the left upper extremity. 4. Entitlement to an increased disability rating in excess of 10 percent for the service-connected peripheral neuropathy of the right lower extremity. 5. Entitlement to an increased disability rating in excess of 10 percent for the service-connected peripheral neuropathy of the left lower extremity. 6. Entitlement to an increased (compensable) disability rating for the service-connected diabetic retinopathy. 7. Entitlement to service connection for a left knee disability to include as secondary to the service-connected peripheral neuropathy of the lower extremities. 8. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left knee disability due to VA treatment. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 1970 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2008 and November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The September 2008 rating decision denied entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a left knee disability due to VA treatment. A November 2009 rating decision denied entitlement to increased ratings for diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, and diabetic retinopathy, service connection for a left knee disability to include as due to peripheral neuropathy of the lower extremities, and entitlement to TDIU. The Veteran testified at a videoconference hearing before the Board in February 2013. A transcript of the hearing is associated with the record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to increased ratings for diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, and diabetic retinopathy; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran's left knee disability to include septic arthritis, osteomyelitis, and osteopenia was not proximately caused by VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or by an event not reasonably foreseeable. 2. The infection which caused the septic arthritis, osteomyelitis, and osteopenia of the left knee was a known complication and risk of the left knee surgery in February 2008, the Veteran was advised of this risk before the surgery, and infection was a reasonably foreseeable event for the left knee surgery in February 2008. 3. The February 5, 2008 surgery to the left knee was performed with the Veteran's informed consent. 4. The Veteran did not sustain an injury or disease of the left knee during service. 5. The Veteran did not experience chronic symptoms of disability of the left knee during service. 6. The Veteran did not experience continuous symptoms of disability of the left knee in the years after service and the Veteran first had complaints of left knee pain in 2007 and a meniscus tear of the left knee was diagnosed. 7. Left knee arthritis, osteomyelitis, and osteopenia were not manifested to a degree of ten percent within one year of service separation. 8. The left knee septic arthritis, osteomyelitis, and osteopenia are not caused by any in-service event, are not related to active service, and are not proximately due to or aggravated by a service-connected disability but are due to the post-service infection the Veteran sustained in February 2008. 9. The meniscus tear of the left knee was not caused by any in-service event, was not related to active service, and was not proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an award of compensation benefits under 38 U.S.C.A. § 1151 for a left knee disability to include septic arthritis, osteomyelitis, and osteopenia have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 2. The criteria for service connection for a left knee disability to include septic arthritis, osteomyelitis, osteopenia, and a meniscus tear are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by letters dated in April 2008 and June 2009. The VCAA letter informed the Veteran of the evidence and information needed to substantiate a claim for service connection on a direct and secondary basis and for compensation pursuant to 38 U.S.C.A. § 1151. The letters informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. The letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letters told the Veteran that he could obtain private records himself and submit them to VA. The VCAA 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. 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. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Letters dated in May 2009 land June 2009 explained the type of evidence necessary to establish a disability rating and effective date. The section 1151 claim was readjudicated in an April 2010 statement of the case. No further notice is needed under VCAA. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting a veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records were obtained and are associated with the claims folder. VA treatment records dated from February 1999 to December 2012 including VA hospital records for the February 2008 left knee operation and the subsequent emergency room records and treatment records for treatment of the left knee disability dated in 2008 and 2009 are associated with the file. Social Security disability records are part of the record. In April 2008 and June 2009, the Veteran indicated that he had no additional information or evidence to submit in support of his claims. VA provided examinations in August 2008 and July 2009 to obtain medical evidence as to the nature and likely etiology of the claimed left knee disability and the cause of the disability. The examinations are adequate because the exams were performed by a medical professional based on review of claims file and a solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiners considered the Veteran's reported medical history and lay statements concerning the claimed left knee disability and provided a medical opinion as to whether the left knee disability was caused by a service-connected disability and whether the left knee disability was due to negligence or other fault on the part of VA or was due to an unforeseeable event. The examination reports are fully descriptive. Neither the Veteran nor his representative has challenged the adequacy of the examinations obtained for these issues. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claims and VA met its duty to assist the Veteran. Compensation for a Left Knee Disability pursuant to 38 U.S.C.A. § 1151 Under the applicable criteria, compensation under 38 U.S.C.A. § 1151 shall be awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished him or her under any law administered by VA, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (a). To determine whether a veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361(b) (2012). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that the veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless the VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a veteran's failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused his additional disability (as explained in 38 C.F.R. § 3.361(c)); and VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, his representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). VA's General Counsel has interpreted that under the provisions of 38 U.S.C. § 1151 benefits may be paid for disability attributable to VA's failure to diagnose and/or treat a preexisting condition when VA provides treatment or an examination. Disability due to a preexisting condition may be viewed as occurring "as a result of" the VA treatment or examination only if it is shown that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability which probably would have been avoided if proper diagnosis and treatment had been rendered. See VAOPGCPREC 5-2001. The Board is bound by the precedent opinions of VA's General Counsel. 38 C.F.R. § 19.5 (2012). Further, this precedent was codified under regulation: Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the Veteran contends that compensation should be awarded under 38 U.S.C.A. § 1151 for a left knee disability to include septic arthritis. He asserts that after he had left knee surgery at a VA medical facility in February 2008, he developed the methicillin-resistent staphylococcus aureus (MRSA) infection due to lack of care at the VA medical Center. The Veteran asserts that due to the MRSA infection, he developed a septic joint in his left knee and osteomyelitis. The Veteran contends that after the surgery the doctor did not change his bandage when he went to the clinic but an assistant did and the assistant removed his stitches. He asserts that after the surgery, he did everything the doctor asked him to do. The Veteran contends that the MRSA infection was caused by the unclean conditions of the doctors and assistants in orthopedics. See the Veteran's statements dated in April 2008 and September 2008, and the Veteran's testimony at the videoconference hearing before the Board in February 2013. After review of all of the evidence, lay and medical, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for the left knee disability which he has claimed is due to VA lack of proper care or negligence in providing treatment. The Veteran's left knee disability to include septic arthritis and osteomyelitis was not proximately caused by VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or by an event not reasonably foreseeable. The infection which caused the septic arthritis of the left knee was a known complication and risk of the left knee surgery in February 2008, the Veteran was advised of this risk before the surgery, and infection was a reasonably foreseeable event for the left knee surgery in February 2008. The February 5, 2008 surgery to the left knee was performed with the Veteran's informed consent. A review of the Veteran's claims file shows that on January 28, 2008, the Veteran sought treatment for left knee pain. The VA treatment record indicates that the Veteran had left knee pain, recurrent swelling, and effusions as well as catching and locking. It was noted that he was recommended for a knee arthroscopy. Physical examination of the left knee revealed mild pain with range of motion, small effusion but no edema. There was mild tenderness to palpation. Range of motion was zero degrees to 140 degrees. X-ray examination revealed minimal osteoarthritis. MRI revealed early mucinous degeneration of the posterior horn medial meniscus. The assessment was left knee medial meniscus tear recommended for arthroscopy, debridement, and possible partial versus total meniscectomy scheduled for February 14, 2008. The Veteran underwent the left knee arthroscopy on February 5, 2008. The operation report indicates that the pre-operative diagnosis and post-operative diagnosis was left knee meniscus tear. The operation report states that the Veteran agreed to proceed after all of the risks and benefits were completely explained including but not limited to bleeding, infection, neurovascular injury, risk of future surgery, incomplete resolution of the symptoms, or chronic pain. A signed permission (consent) was found in the chart. The Veteran underwent a left knee arthroscopy and partial medial meniscectomy; the surgery was outpatient. The operation report indicates that the Veteran tolerated the procedure well. The report indicates that the postoperative skin color was normal. VA treatment records indicate that on February 17, 2008 the Veteran presented to the emergency room with a septic left knee. The Veteran reported having worsening severe left knee pain for one day. He denied trauma and indicated that he had a fever at home. The Veteran had noticed increasing drainage from the wound on his left knee. Examination revealed severe pain with movement of the left knee. There was small effusion noted and increased warmth. There was serous drainage form the incision with small amounts of pus. The knee was tapped by orthopedics and cloudy, purulent fluid was drained from the knee joint. The knee was aspirated and septic arthritis was detected. The Veteran was taken emergently to the operating room for an arthroscopic washout. The diagnosis was confirmed intraoperatively. The Veteran tolerated the procedure well without complications. The cultures were positive for MRSA. Empiric therapy with Vancomycin and Ciprofloxacin was started. The duration of the treatment was 6 weeks and ended on March 30. The Veteran was afforded a VA examination in August 2008 to obtain medical evidence in connection with his claim for compensation pursuant to 38 U.S.C.A. § 1151. The VA examination report indicates that the VA physician reviewed the VA medical records of the left knee arthroscopy for torn cartilage in the left knee. The VA physician noted that the arthroscopy was uneventful. It was noted that the Veteran was seen again on February 7 and the dressing was changed and no apparent problem was detected. The VA physician noted that on February 9 the Veteran began to experience severe pain in his left knee. The VA physician noted that on February 10th the Veteran was readmitted to the VA hospital and his knee was tapped on two occasions in the emergency room. It was documented that the Veteran had a septic knee joint with an infection involving MRSA. The VA physician noted that the Veteran subsequently received intravenous inpatient therapy with antibiotics for a prolonged period of time and the antibiotics were discontinued on March 31 when the infection had apparently been arrested. The VA physician noted that the Veteran had since been followed in the clinic and has undergone physical therapy. The Veteran was currently undergoing a home exercise program and was in the recuperative phase of the severe infection in the knee. The Veteran currently used a left knee brace and cane for support and he has had continuous pain in the left knee; he had pain with weight bearing and the pain was exacerbated by walking one block or standing for two hours or climbing stairs. The diagnosis was post treatment for septic joint and osteomyelitis with MRSA infection. The VA physician opined on August 2008 that it was more likely than not that this infection was a complication of the arthroscopy surgery. The VA physician indicated that there was no clinical evidence available in the medical record that additional complications and disability resulted from carelessness, negligence, lack of proper skill, or error in judgment or similar incidents or similar instances of fault on the part of the attending VA personnel or was the result of an event that could not have reasonably been foreseen and anticipated by a competent and prudent healthcare provider. The VA physician opined that there was no evidence that VA failed to timely diagnose and properly treated the claimed disease or disability. The Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's left knee septic arthritis and osteomyelitis were not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment, or by an event that was not reasonably foreseeable. Rather, the record shows that the MRSA infection which the Veteran developed subsequent to the February 2008 left knee arthroscopy and partial medial meniscectomy which led to the septic arthritis of the left knee was a foreseeable risk of the left knee surgery. The February 5, 2008 operation report indicates that the Veteran was advised of the risks of the operation including infection and chronic pain. There was a signed consent form in the chart. The evidence shows that the Veteran was informed of the risk of infection and he provided informed consent for the treatment. As infection was a known risk to which the Veteran consented, any subsequent infection or residuals of infection are by regulatory definition not proximately caused by VA care or treatment. 38 C.F.R. § 3.361(d)(1). The weight of the competent and credible evidence demonstrates that the Veteran's left knee septic arthritis and osteomyelitis were not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment. The VA physician who provided the August 2008 VA medical opinion reviewed the Veteran's history regarding the left knee surgery and he stated that the infection was a complication of the arthroscopy surgery. The VA physician indicated that there was no clinical evidence available in the medical record that additional complications and disability resulted from carelessness, negligence, lack of proper skill, or error in judgment or similar incidents or similar instances of fault on the part of the attending VA personnel or was the result of an event that could not have reasonably been foreseen and anticipated by a competent and prudent healthcare provider. The VA physician opined that there was no evidence that VA failed to timely diagnose and properly treated the claimed disease or disability. There is no competent contrary medical opinion of record regarding the etiology of the claimed left knee disability or tending to show VA fault as the proximate cause of the claimed disability. The record does not include any competent evidence, to include a medical nexus, which indicates the left knee disability was the result of negligence, carelessness, lack of proper skill, error in judgment, or fault on behalf of VA. Absent such evidence, the Board finds that a preponderance of the evidence is against compensation pursuant to 38 U.S.C.A. § 1151 for a left knee disability claimed as caused by VA lack of proper care/negligence in providing surgical treatment, hospitalization, and/or inpatient treatment, such that compensation is not warranted. The Board acknowledges Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), in which the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The Veteran is competent to report observable left knee symptoms such as pain, swelling, and drainage. He is also competent to report observable events such as which medical care provider changed his dressings. However, the Veteran is not competent, as a layperson with no medical training or expertise, to offer an opinion regarding any actual causal relationship between his VA treatment and the MRSA infection and left knee disability. Additionally, the Veteran is not competent to offer an opinion as to proximate causation of the claimed disability, that is, to assess VA negligence (which includes establishing the community standard of care and breach of that care) or to establish other VA fault in the delivery of medical care. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, whether VA was negligent or at fault in the delivery of medical care, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation; therefore such issues are not susceptible of lay opinions on etiology. Lay testimony on the question of standard of medical care and negligence is not competent in the present case because the Veteran is not competent to provide a medical or legal opinion without medical or legal expertise. See Davidson v. Shinseki, 581 F.3d 1313, 316 (Fed. Cir. 2009); Kahana (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). An opinion as to whether VA was at fault in providing medical care would require knowledge of the legal standard of care and knowledge of the complexities of the musculoskeletal system and the various causes of infectious diseases and would involve objective clinical testing that the Veteran is not competent to perform. Such opinion would also involve an understanding of the unseen and complex interactive process between infection (immune system) and its affect on the unseen internal degeneration of a joint (orthopedic), including the ability to differentiate common symptoms such as pain that may indicate a host of disorders that are unrelated to infection. The evidence of record shows no clinical relationship between any current left knee disability and treatment he received at VA facilities. While the Veteran's contentions have been considered carefully, these contentions are outweighed by the more probative medical evidence of record showing no nexus between his VA treatment and any left knee disability, that is, no actual causation, as well as no proximate causation by alleged VA negligence or similar fault. In addition, the Board finds that evidence does not show that an event that was not reasonably foreseeable for the disabilities claimed occurred in this case. Rather, the evidence preponderates against any of these findings. The weight of the competent and credible evidence shows that the Veteran was notified of possible complications of the left knee surgery including infection and chronic pain. The risks of infection and chronic pain were disclosed to the Veteran in connection with informed consent. The record shows that the Veteran consented to the surgery. The record shows that the treatment he received, including the treatment he received after the MRSA infection was diagnosed, was appropriate. The MRSA infection which developed after the left knee surgery was not an unforeseen event. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for compensation for a left knee disability to include septic arthritis, osteomyelitis, and osteopenia on the basis of 38 U.S.C.A. § 1151, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Left Knee Disability Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, arthritis (degenerative joint disease) is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis become manifest to a degree of 10 percent or more within one year after the date of separation from 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(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Court has held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Disabilities that are proximately due to, or aggravated by, service-connected disease or injury, provides that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau at 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (evidence of a prolonged period without medical complaint can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102 (2012). The Veteran contends that his left knee disability is worsened by the service-connected peripheral neuropathy of the lower extremities. See the Veteran's statements dated in May 2010 and November 2010, and testimony at the videoconference hearing before the Board in February 2013, pages 9, 13, and 14. At the Board videoconference hearing, the Veteran stated that he believed that the peripheral neuropathy caused his left knee disability. He later stated that the peripheral neuropathy did not cause him to fall and injure his knee. Id. While it is not entirely clear whether the Veteran is pursuing the theory of secondary service connection, given the inconsistent assertions, the Board will address all theories of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement must be considered). As discussed above, the claim for service connection for a left knee disability was developed and adjudicated on a direct and secondary basis and the Veteran was properly notified pursuant to the VCAA. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the Veteran did not sustain a left knee injury or disease during service; did not experience chronic symptoms of disability of the left knee during service; and did not experience continuous symptoms of disability of the left knee since service. The Board finds the weight of the competent and credible evidence shows that the Veteran first had complaints of knee pain in 2007 when a medical meniscus tear was diagnosed. The evidence shows that the septic arthritis, osteomyelitis, osteopenia of the left knee are due to the post-service infection the Veteran sustained in February 2008, are not caused by any in-service event, are not related to active service, and are not proximately due to or aggravated by a service-connected disability. On the question of knee injury or disease during service, the service treatment records indicate that examination of the lower extremities was normal upon enlistment examination in January 1970 and again upon service separation examination in January 1974. The service treatment records do not document any left knee injuries or disease, or even left knee complaints, findings, diagnosis, or treatment of a disorder of the left knee during service. With regard to post-service symptoms, the weight of the competent and credible evidence shows that the Veteran first had left knee complaints over 30 years after service in 2007 when he complained of left knee pain. An August 2007 left knee x-ray examination was normal. An MRI showed damage to the meniscus. The evidence of record shows no complaints, diagnosis, or treatment for a left knee disability until 2007, over 30 years after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment after service for many years until 2007 is one factor, considered in addition to the other factors stated in this decision, which tends to weigh against a finding of either chronic left knee symptoms in service or continuous symptoms of knee disability after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). VA treatment records show that on January 28, 2008 the Veteran sought treatment for left knee pain. The VA treatment record indicates that the Veteran had left knee pain, recurrent swelling, and effusions as well as catching and locking, for which a knee arthroscopy was recommended. Physical examination of the left knee in January 2008 revealed mild pain with range of motion, small effusion but no edema, and mild tenderness to palpation. Range of motion was zero degrees to 140 degrees. X-ray examination revealed minimal osteoarthritis. MRI revealed early degeneration of the posterior horn medial meniscus. The assessment was left knee medial meniscus tear recommended for arthroscopy, debridement, and possible partial versus total meniscectomy scheduled for February 14, 2008. The Veteran underwent the left knee arthroscopy on February 5, 2008. The operation report indicates that the pre-operative diagnosis and post-operative diagnosis was left knee meniscus tear. The operation report states that the Veteran agreed to proceed after all of the risks and benefits were completely explained including but not limited to bleeding, infection, neurovascular injury, risk of future surgery, incomplete resolution of the symptoms, or chronic pain. A signed permission (consent) was found in the chart. The Veteran underwent a left knee arthroscopy and partial medial meniscectomy; the surgery was outpatient. The operation report indicates that the Veteran tolerated the procedure well. VA treatment records indicate that on February 17, 2008, the Veteran presented to the emergency room with a septic left knee. The Veteran reported having worsening severe left knee pain for one day. He denied trauma and indicated that he had a fever at home. The Veteran had noticed increasing drainage from the wound on his left knee. Examination revealed severe pain with movement of the left knee. There was small effusion noted and increased warmth. There was serous drainage from the incision with small amounts of pus. The knee was tapped and aspirated and septic arthritis was detected. The Veteran was taken emergently to the operating room for an arthroscopic washout. The diagnosis was confirmed intraoperatively. The Veteran tolerated the procedure well without complications. The cultures were positive for MRSA. Empiric therapy with Vancomycin and Ciprofloxacin was started. The duration of the treatment was 6 weeks and ended on March 30. The Veteran was afforded a VA examination in August 2008. The VA examination report indicates that the VA physician reviewed the VA medical records of the left knee arthroscopy for torn cartilage in the left knee. The diagnosis was post treatment for septic joint and osteomyelitis with MRSA infection. The VA physician opined on August 2008 that it was more likely than not that this infection was a complication of the arthroscopy surgery. The Veteran was afforded another VA examination in July 2009. The VA examiner interviewed the Veteran, considered the medical history, and examined the Veteran. The diagnosis was left knee mild osteopenia. The VA examiner opined that it was less likely than not that the left knee disability was secondary to the peripheral neuropathy since peripheral neuropathy did not cause osteopenia. The Board finds that the weight of the competent and credible evidence establishes that the left knee septic arthritis, osteomyelitis, and osteopenia first manifested in symptoms in 2007 and diagnosis in 2008, over thirty years after service separation, and the left knee septic arthritis, osteomyelitis, and osteopenia were caused by the post-service knee operation in February 2008 and the MRSA infection the Veteran contracted after the left knee surgery. The Board finds that the weight of the competent and credible evidence establishes that the Veteran did not sustain an injury or disease of the left knee during service, did not experience chronic left knee symptoms in service, and did not experience continuous post service symptoms of a left knee disability to include septic arthritis, osteomyelitis, and osteopenia. See 38 C.F.R. § 3.303(b). Therefore, the criteria for presumptive service connection pursuant to 38 C.F.R. § 3.303(b) for chronic in service symptoms and continuous post service symptoms are not met. The Board finds that the weight of the competent and credible evidence establishes that the septic arthritis, osteomyelitis, and osteopenia of the left knee did not manifest within one year of service separation and first manifested many years after service separation. The first mention of knee pain is in 2007 and the first diagnosis of left knee septic arthritis, osteomyelitis, and osteopenia is in 2008. Such findings are to be considered in the context of the other evidence showing no in-service injury or disease, and no chronic or continuous symptoms. For this reason, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for a chronic disease manifested to 10 percent within one year from service separation is not warranted. Finally, the Board finds that the weight of the evidence demonstrates that the left knee disability is not caused by any in-service event or injury and is not otherwise related to service by competent evidence. There is no medical evidence of record which medically relates the left knee disability (including septic arthritis, osteomyelitis, osteopenia, and a meniscus tear) to active service. The medical evidence relates the left knee disability to a post-service event, the left knee surgery and MRSA infection in February 2008. There is no medical evidence of record which medically relates the left knee disability (including septic arthritis, osteomyelitis, osteopenia, and a meniscus tear) to a service-connected disability, to include the service-connected peripheral neuropathy. The medical opinion evidence establishes that it is less likely than not that the left knee disability was caused by the peripheral neuropathy. There is no competent evidence which establishes that the left knee disability is aggravated by a service-connected disability. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a left knee disability to include to include septic arthritis, osteomyelitis, osteopenia, and a meniscus tear, as a presumptive disease, on a direct basis, and on a secondary basis. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER The claim for compensation for an additional left knee disability to include septic arthritis, osteomyelitis, and osteopenia on the basis of 38 U.S.C.A. § 1151 is denied. Service connection for a left knee disability, to include septic arthritis, osteomyelitis, osteopenia, and a meniscus tear, is denied. REMAND Increased Ratings The VCAA specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence tends to show that the service-connected diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, and diabetic retinopathy may have worsened. At the videoconference hearing before the Board in February 2013, the Veteran stated that his diabetes mellitus had worsened and he now had a regulation of activity. See hearing transcript pages 18-19. The Veteran stated that the pain from the peripheral neuropathy was worse and the peripheral neuropathy had gotten worse in the last 15 months. See hearing transcript pages 3, 4, and 7. The Veteran stated that he dropped things, it was hard to close his hands completely, and he had difficulty raising his arms. See hearing transcript page 7. The Veteran reported that he had numbness and tingling in his feet and toes and the pain associated with the numbness and tingling was worse. See hearing transcript page 8. Because of the evidence of possible worsening since the last VA examinations in May 2009 and June 2009, new examinations are needed to assist in determining the severity of the service-connected diabetes mellitus type II, diabetes retinopathy, and peripheral neuropathy of the upper and lower extremities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. Regarding the claim for an increased rating for the diabetic retinopathy, the record shows that the Veteran last underwent an eye examination in 2006. The 2006 VA examination does not address all the rating criteria for retinopathy under Diagnostic Code 6006, retinopathy or maculopathy, and the General Rating Formula for this code. See 38 C.F.R. § 4.79 (2012). Specifically, the VA examination report does not address whether the retinopathy causes incapacitating episodes. VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). Thus a new examination is needed to determine the severity of the service-connected diabetic retinopathy. TDIU The issue of a TDIU is inextricably intertwined with the issues of entitlement to increased ratings for the service-connected disabilities. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of the TDIU claim is deferred until adjudication of these claims. Outstanding Treatment Records The RO should obtain copies of any outstanding treatment records from the VA Healthcare System dated since January 2013. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The RO should contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent VA or non-VA treatment records showing treatment of the service-connected diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, and diabetic retinopathy. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA medical treatment rendered for the service-connected diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, and diabetic retinopathy. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. The letter also should invite the Veteran to submit any pertinent medical evidence or other treatment records in support of his claim. 2. Obtain records of VA treatment records for treatment of diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, and diabetic retinopathy dated from January 2013 from the VA healthcare system. 3. Schedule the Veteran for the appropriate VA examination to assist in determining the current nature and severity of the service-connected diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, and diabetic retinopathy. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should provide an opinion as to whether the Veteran requires regulation of activities due to the diabetes mellitus. The examiner should report whether the diabetes mellitus causes episodes of ketoacidosis; and/or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. The examiner should report whether the diabetes mellitus requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or other complications. The examiner should also describe what, if any, complications attributable to the Veteran's service-connected diabetes mellitus exist and should specifically describe the nature and severity of each such complication. If the Veteran does not suffer any such complication(s) as a result of his diabetes mellitus, the examiner should so state. The examiner should specifically note all symptomatology and manifestations caused by the service-connected peripheral neuropathy of the upper and lower extremities. The examiner should specify the whether the peripheral neuropathy of each of the upper and lower extremities is mild, moderate, moderately-severe, or severe. The examiner should report whether there is complete paralysis in the upper extremities with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. The examiner should report whether there is complete paralysis in lower extremities with foot drop and/or a loss of movement or weakened movement below the knee and in the foot and ankle. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities alone (singularly or in the aggregate) preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. A complete rationale for any and all opinions expressed should be provided. 4. Schedule the Veteran for a VA examination by a licensed optometrist or licensed ophthalmologist to assist in determining the current severity of the service-connected diabetic retinopathy. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should perform all diagnostic testing and evaluation deemed necessary to properly evaluate the current severity of the Veteran's diabetic retinopathy to include examination of visual acuity. Corrected and uncorrected central visual acuity for distance and near should be measured for both eyes based on the Snellen's test type or equivalent. The examiner should indicate whether the Veteran has experienced any incapacitating episodes (defined as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider) as a result of diabetic retinopathy and if so, report the duration of the incapacitating episodes in the past 12 months. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected diabetic retinopathy alone or with the other service-connected disabilities preclude the Veteran from securing and following substantially gainful employment consistent with his education and occupational experience. A rationale must be provided for all findings and conclusions reached. The examiner should identify and explain the medical basis for any opinion and identify the pertinent evidence of record. 5. After completing all indicated development, the RO should readjudicate the issues remaining on appeal and the TDIU claim in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and representative, and they should be afforded a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs