Citation Nr: 1326620	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  11-15 770	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a chronic bilateral knee disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel







INTRODUCTION

The Veteran served on active duty from September 1974 to September 1977.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Columbia, South Carolina, Regional Office of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic bilateral orthopedic disability of the knees.  This case was brokered to the Columbia, South Carolina, VA Regional Office from the Cleveland, Ohio, VA Regional Office (RO), which is the agency of original jurisdiction over the current appeal.


FINDINGS OF FACT

1.  Bilateral chondromalacia patellae that was clinically demonstrated during the Veteran's active service is not presently actively manifest and was not manifested at any time during the pendency of this claim.

2.  The Veteran's present bilateral knee disability, diagnosed as bilateral osteoarthritis with advanced tricompartmental degenerative joint disease, did not have its onset during active military service and is not medically related to the bilateral chondromalacia patella that was clinically demonstrated during active service.


CONCLUSION OF LAW

A chronic bilateral knee disability was not incurred, nor is one presumed to have been incurred in active duty.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

The Veteran's claim for service connection for a bilateral knee disorder was filed in February 2009.  Notice letters addressing the applicability of the VCAA to the claim and of VA's obligations to the appellant in developing the claims were dispatched in April 2009 and May 2009, which fully satisfied the above-described mandates.  No timing of notice defect exists as fully compliant notice was sent prior the initial adjudication of the claim in the rating decision of December 2009 now being appealed.  

VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the claimant of its duty to assist in obtaining records and supportive evidence.  A review of the claims file indicates that VA has obtained his service treatment records as well as his post-service private and VA medical records for the period from 1992 - 2011.  The Board has also reviewed the Veteran's claims file as it appears on the Virtual VA and VBMS electronic database for any pertinent clinical records.  

VA has also provided the Veteran with a VA examination addressing the bilateral knee disability at issue in September 2009, in which a definitive diagnosis and nexus opinion were obtained by the physician who examined the Veteran and had opportunity to review his pertinent clinical history contained in his claims file.  The opinion specifically addressed the service connection issue on appeal.  The Board finds that the physician's opinion is quite adequate for purposes of adjudicating the VA compensation claim decided herein, as it fully addresses, contemplates, and incorporates the findings of the Veteran's pertinent clinical history and his prior treatments and examinations of record.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).         

Based on the foregoing, the Board finds that VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required with respect to this matter.  The record shows that neither the Veteran nor his representative have indicated that they had any additional evidence or arguments to submit in support of the claim decided on the merits herein.  He has suffered no prejudice in this regard that would warrant a remand, and his procedural rights have not been abridged as they pertain to this aforementioned issue.  Bernard v. Brown, 4 Vet. App. 384 (1993).  Thus, the Board will proceed with the adjudication of this appeal regarding the claim for VA compensation for a bilateral knee disability.  

Service connection laws and regulations.

The Board has thoroughly reviewed all the evidence in the claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision with respect to the matter decided herein, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  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 preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

To establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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.  Hickson v. West, 12 Vet. App. 247, 253 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  The requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  
Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2012).  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any documentation of treatment for complaints of bilateral knee symptoms or a notation of a bilateral knee diagnosis during active duty will permit service connection for a chronic bilateral knee disability, first shown as a clear-cut clinical entity, at some later date.  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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).   The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a) which, as relevant to the issues decided herein, include arthritis.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Otherwise, service connection may be granted for any disease diagnosed after discharge from active duty 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).  Service connection may also be granted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a), (b) (2012).  In this regard, the Veteran is presently service connected only for bilateral hearing loss and tinnitus.  As these audiological disabilities clearly involve a separate anatomical system than the orthopedic disability currently at issue, and as the Veteran does not assert that his knee disability is somehow associated with his service-connected hearing loss and tinnitus, no further discussion of service connection based on a theory of secondary association is warranted.

Knee arthritis (including degenerative disease of the bony joints) may be presumed to have been incurred in service if it is manifest to a compensable degree within one year after the Veteran's discharge from active duty.  38 C.F.R. §§ 3.307, 3.309 (2012).

Factual discussion and analysis: Entitlement to service connection for a chronic bilateral knee disability.

The Veteran's service medical records note that he had a history of fracture of his right lower extremity but clearly demonstrate that his knees were clinically normal on service entrance examination in September 1974.  Thereafter, in May 1977, he presented with complaints of recurrent bilateral knee pain that began approximately six months or up to one year earlier.  From that time forward and up through to his separation from active duty, the Veteran's service medical records reflect that he was treated for complaints of recurrent bilateral knee pain that was attributed to a diagnosis of chondromalacia patellae, his right knee worse than his left.  X-rays of his knees revealed no arthritis present.  An "irregular bone tumor" of his lower extremity was observed, which produced a tentative initial assessment of rule out neoplastic disease, but this was subsequently determined to be only a benign sclerosis.  Separation examination shows that his lower extremities were abnormal only for a diagnosis of bilateral chondromalacia patellae.  He was discharged from active duty in September 1977.   

The Veteran currently states that his bilateral knee pain continued to persist in the years since his separation from military service but that he did not seek treatment for his knees until they eventually worsened over time to the point that he had to seek medical consultation for his painful knees.  

According to private medical records associated with the Veteran's claims folder, in January 1992 he was treated at a hospital emergency room for a twisting injury of his right ankle that he sustained while walking, with incidental posterior right knee pain.  Subsequent physical examination in February 1992 shows, in pertinent part, that his right knee was non-tender and displayed full range of motion, with no joint effusion or instability present and negative Drawer sign.

A private treatment note dated in July 2002 shows that the Veteran was treated for complaints of intermittent chest pain.  At the time of treatment he was noted to be a robust and physically active man who reported that he regularly jogged and performed work-out exercises.  Musculoskeletal examination revealed no pertinent complaints of knee pain.

The private medical records associated with the claims file show that the Veteran began receiving regular medical treatment for complaints of bilateral knee pain in August 2003.  The August 2003 treatment note shows that he reported onset of left knee pain approximately one year earlier, with subsequent onset of right knee pain approximately six months prior.  He denied overuse of the knees or of having any specific precipitating injury.  Examination in August 2003 revealed bilateral effusion of the knee, but with good patellar tracking without patellar apprehension, intact quadriceps and patellar tendons, and no laxity of any of the knee ligaments, bilaterally.  Knee X-rays in August 2003 revealed no arthritic or other obvious abnormalities. 

In the time since August 2003, the Veteran has been diagnosed with bilateral chronic osteoarthritis and tricompartmental degenerative joint disease of his knees, for which he has been treated with arthroscopic surgery of the right knee in October 2005.  He was prescribed pain medications, supportive knee braces, and steroid injections directly into his knees to treat his bilateral knee symptoms.  The records reflect that the clinical prognosis for his bilateral knee arthritis is that he would eventually require a total knee arthroplasty for each knee.

In September 2009, the Veteran was examined by a VA physician who reviewed his claims file and determined that no chondromalacia of either knee was present at the current time, as an evaluation of his knees revealed no patellar abnormalities.  In his discussion of the Veteran's clinical history, the VA clinician noted that even as late as November 2003, and again in November 2008, examination of either knee revealed that no chondromalacia patella was clinically present.  A history of generalized osteoarthritis and gout was noted.  Current X-rays and physical examination revealed objective findings supporting a diagnosis of advanced bilateral tricompartmental degenerative joint disease of the knees, manifested by severe pain, pain on use, and limitation of motion.  The VA clinician presented the following nexus opinion:

There is no doubt that this vet[eran's] current [knee] problems [are] due to his [non-service-]related gout and/or generalized osteoarthritis.  His diagnosis of chondromalacia patellae. . . in service [back] in the [1970s] could not have likely brough[t] about the [knee disability] picture as we see today [or] as seen by his own doctors in the past 10 years.  [It is significant] that this veteran's [knee] problems. . . remained medically silent from [his separation from service in] 1977 until [the] early 2000[s] when he started treat[ment] for his [bilateral knee] arthritis.  Therefore, his current diagnosis of bilateral knee[] tricompartmental osteoarthritis is much less likely as not caused by or [is] a result of his military service or any [knee-related] diagnosis made during [service].

Subsequent VA medical records covering the period up to 2011 show ongoing treatment for bilateral knee pain due to osteoarthritis.  No chondromalacia patella of either knee is clinically indicated. 

The Board has considered the September 2009 VA nexus opinion presented above and finds that it has definitively answered the question as to whether or not the Veteran's current bilateral osteoarthritic knee disability is directly related to service, including whether it is related to the bilateral chondromalacia noted in service.  The VA physician's opinion is, essentially, that there is no relationship between the Veteran's military service and his current osteoarthritis, stating that the bilateral chondromalacia patella noted in service could not have likely resulted in the Veteran's current disease picture as it relates to his knees.  The VA physician's review of the private medical records noted that even as late as November 2003, and again in November 2008, examination of either knee revealed that no chondromalacia patella was clinically present.     

The September 2009 VA nexus opinion distinguishes the chondromalacia patella noted in service with the current bilateral knee arthritis, conclusively stating that no etiological relationship exists between the two conditions.  Furthermore, the VA clinician's opinion observes that chondromalacia patella was not actively present in either knee during treatment for knee pain in November 2003 and November 2008, and no patellar abnormalities were detected on VA examination in September 2009 or on any subsequent medical treatment records.  Therefore, the Board finds that the bilateral chondromalacia patellae noted during active duty was not a chronic disease process and evidently resolved on its own after service as it was not manifest thereafter or at any time during the pendency of the current claim.  Thusly, to the extent that the Veteran claims entitlement to VA compensation for chondromalacia patellae as a chronic knee disability, his claim in this regard must be denied as this condition is not actively present after service or at any time during the pendency of this claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Similarly, the Veteran's claim for VA compensation for his current diagnosis of bilateral osteoarthritis with advanced tricompartmental degenerative joint disease must be denied as the objective medical record shows that no arthritis of either knee was observed on X-ray during active duty, and the current osteoarthritis of the knees was not demonstrably present until approximately after July 2003, and therefore could not have been manifested to a compensable degree within the one-year presumptive period for arthritis following the Veteran's discharge from service in September 1977.  Furthermore, the VA clinician has conclusively determined that the Veteran's current diagnosis of bilateral osteoarthritis with advanced tricompartmental degenerative joint disease is not a current manifestation of the bilateral chondromalacia patellae noted in service as these two orthopedic syndromes are entirely unrelated to each other.

To the extent the Veteran reports a history of onset of a chronic bilateral knee pain in service and seeks to establish chronicity of his current bilateral knee pain with service through his self-reported history of continuity of such symptomatology since active duty, the Board finds his account in this regard is not credible as it is contradicted by the objective documented service medical records, which show that in 1992 he only experienced incidental right knee pain following a twisting injury of his right ankle, with his own admission 10 years later during medical treatment in July 2002 that he was a regular jogger with no complaints of knee pain.  Thereafter, there are no further medically documented complaints of knee pain until August 2003, when he presented with complaints of bilateral knee pain whose reported onset was no earlier than one year prior.  The Board places more credibility on the Veteran's account regarding his history of onset of bilateral knee pain as recorded in the July 2002 and August 2003 private medical reports, as his motivation at the time for doing so was to obtain treatment, whereas his motive for his current report of onset of bilateral knee pain in service is to obtain monetary compensation.  Therefore, his self-reported history of continuity of bilateral knee symptoms since active duty is not deemed to be credible for purposes of establishing a nexus with service.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Finally, to the extent that the Veteran attempts to relate his bilateral knee disability to his period of military service based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board first notes that he is not shown in the record to be a trained medical clinician.  His military records reflect that he served on active duty in the United States Army in the capacity of an motor transport operator.  His current records reflect that in March 2011, he was employed at a propane distribution company delivering cylinders of propane gas, with the anticipated prospect of eventually being an installer of propane gas lines for this company.  Nothing in his post-service vocational background indicates that he received any formal medical training.  Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific questions in this case regarding the clinical existence and the nature and medical etiology of his current bilateral knee disability and its relationship to his military service fall outside the realm of common knowledge of a lay person, the Veteran lacks the competence to present a valid medical diagnosis and provide a probative medical opinion linking his knee disability to his period of military service or to the bilateral chondromalacia patellae that was clinically noted in service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are not competent to diagnose internal medical conditions, such as degenerative joint disease of the knees, which may be presented only by a trained physician or medical specialist in orthopedics.)   His statements and assertions in this regard, absent any supportive objective medical evidence, are thusly not entitled to any probative weight.    

In view of the foregoing discussion, the Veteran's claim for VA compensation for a chronic bilateral knee disability based on theories of direct causation or presumptive service-connection must be denied.  Because the evidence in this case is not approximately balanced with respect to the merits of this specific claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
    

ORDER

Service connection for a chronic bilateral knee disability is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs