Citation Nr: 1326984 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-16 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a right knee disability as secondary to the service-connected left knee injury post-arthroscopic surgery for torn medial cartilage and anterior cruciate ligament tear (left knee disability). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from June 1964 to April 1969 and from December 1990 to January 1991, with additional reserve service. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim for service connection for a right knee disability. The Veteran testified at Decision Review Officer (DRO) hearings held in May 2005 and November 2009. In March 2013, the Board remanded the claim for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. FINDINGS OF FACT The most probative evidence indicates the Veteran's right knee disability, initially diagnosed after service, is not caused or aggravated by his service-connected left knee disability. CONCLUSION OF LAW The requirements for establishing service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154(a), 5107(b) (West 2002); 38 C.F.R. § 3.310 (2006; §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished by letters sent in February 2004, February 2007, and April 2013. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). Additionally, the claim was readjudicated in the June 2013 supplemental statement of the case. The Veteran has been afforded hearings before a DRO in May 2005 and November 2009, in which he presented oral argument in support of his claim for service connection for a right knee disability as secondary to the left knee disability. 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 DRO who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, at the hearings, the DRO discussed with the Veteran facts relating to the elements of the pending claim that were lacking to substantiate his claim for benefits. The DRO also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. In fact, the Veteran was able to provide pertinent evidence as to the current severity of his symptoms, which was considered in this decision. Moreover, neither he nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the evidence is sufficient for a determination. The claimant was provided the opportunity to present pertinent evidence. The Virtual VA file, service records, and available private and VA treatment records have been obtained. In addition, he has been provided with VA examinations in connection with his present claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, a disability may be service-connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2006). Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran's service treatment records contain no complaints, history or findings consistent with a right knee disability. After service, a VA clinical treatment note in March 2002 recorded a diagnosis of bilateral degenerative joint disease of the knees, left greater than right. Given the absence of any complaints in service, or for years thereafter, and no competent evidence linking the current disability to service, there is no basis for concluding the Veteran's right knee disability was incurred in service. Additionally, degenerative joint disease of the right knee was not documented within one year of discharge from service, so service connection for degenerative joint disease on a presumptive basis is not warranted. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). However, the thrust of the Veteran's claim is that he developed a right knee disability as secondary to the service-connected left knee disability. The Veteran has been awarded service connection for a left knee disability. A Veteran is competent to testify to factual matters of which he had first-hand knowledge. The Board finds that the Veteran is competent to report that he had pain, swelling and discomfort in the right knee. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2012). Although the Veteran is competent to describe symptoms affecting the right knee, the determination as to the cause of a knee disability is medical in nature and not capable of lay observation. As a lay person, he does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of the condition. See Kahana; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). As such, the Board finds the Veteran's assertions alone are insufficient to establish service connection. His lay assertions are of limited probative value when offered to establish a causal connection between his right knee condition and the service-connected left knee disability. On the question of medical causation or medical evidence of an association or link between a right knee disability, to include degenerative joint disease of the right knee, and the service-connected left knee disability, there is evidence both for and against the claim. 38 C.F.R. § 3.303(d) (2012). With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, which may include a review of medical literature; and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also, the probative value of a medical opinion is generally based on the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). In support of his claim, an April 2005 private bilateral knee evaluation report reflects that a clinician noted the Veteran's report of overuse of the right knee due to the left knee disability, along with a diagnosis of right knee degenerative changes with early valgus deformity secondary to the left knee disability. Similarly, in March 2007, a VA clinician noted the Veteran's report of increasing pain in the right knee due to favoring the left knee because of pain. The Veteran was advised to lose weight. The Board notes that to the extent that the private and VA clinicians associated the Veteran's right knee disability to the service-connected left knee condition, the opinions were not supported by a rationale, which weighs against their probative value. Nieves-Rodriguez. Thus, those reports, while statements by competent medical professionals, are of little probative value and do not constitute competent medical evidence of a nexus between the Veteran's right knee disability and left knee disability to the extent that they are based solely on reported assertions of the Veteran and do not contain medical analysis in support of their findings. The evidence against the claim consists of the medical opinions of the VA examiners in July 2003, March 2008, and April 2013, and the June 2013 independent medical opinion report, who opined that the Veteran's right knee condition was not caused or aggravated by his service-connected left knee disability. On VA examination in April 2013, the Veteran reported onset of right knee pain and swelling in 2004. He attributed the right knee symptoms to the service-connected left knee. The examiner reviewed the claims file and noted that a private physician in 2005 provided a diagnosis of right knee osteoarthritis secondary to the left knee, but failed to explain the basis for said diagnosis. The examiner also noted in 2007 a VA clinical treatment note recorded the Veteran's report that the right knee was aggravated by favoring the left knee. The examiner again pointed out that no rationale in support of the statement was provided. The examiner noted that the Veteran did have arthritis of the right knee and limitations with pain. However, the Veteran's obesity was a more likely known cause in osteoarthritis. Regarding the Veteran's theory that overuse of the right knee due to favoring of the left knee, caused the right knee disability, the examiner noted that while there was evidence that biomechanical changes could affect other joints over the years, there was no literature to support a finding that one limb could cause arthritis in the other due to perceived overuse. The examiner further indicated that the Veteran had multiple disabilities affecting his gait, to include obesity, cardiovascular disease and a respiratory disorder. The examiner concluded that there was no evidence that the left knee disability caused the right knee condition. Based on the Veteran's age and weight, arthritis would be considered common. An additional independent medical opinion addressing the Veteran's contentions was obtained in June 2013. Following a detailed review of the Veteran's claims file, the physician opined that the Veteran's claimed right knee condition was less likely than not incurred or caused by the claimed in-service injury, event or illness. The physician initially noted that the while the service treatment records clearly documented a left knee condition, there were no findings pertaining to the right knee in service or within one year of discharge from service. Moreover, the physician concluded that the right knee disability was less likely than not proximately due to, or the result of, or aggravated by the service-connected right knee condition. The physician explained that pathologic processes that result in arthritic changes included increased loading of the joint surfaces, direct damage to the joint surface from the original trauma and chronic sheer forces resulting from ligament instability. Thus, while the literature supported a finding that development of degenerative joint disease (osteoarthritis) could be due to mechanical stress on the affected joint, in this case, the Veteran's service-connected left knee, it would not affect the normal right knee. The physician agreed with the VA examiner in April 2013, that the Veteran's right knee arthritis was likely due to obesity, and there was no literature to support the Veteran's contention that that one limb could cause arthritis in the other due to perceived overuse. Similarly, on VA examination in July 2003, the examiner noted examination of the right knee revealed atrophy of the quadriceps. The examiner stated that on physical examination and x-ray examination he could find no explanation for the Veteran's symptoms or quadriceps atrophy of the right knee. The examiner indicated that he did not believe the Veteran's right knee problems were related to the left knee because he was not aware of any studies that showed an increase in degenerative changes in a knee secondary to prolongation of the stance phase due to pain in the contralateral knee. The amount of additional stress placed on a knee on climbing, sitting, or standing, was well within the normal range and should not cause degenerative changes. The VA examiner failed to specifically state whether the Veteran's right knee condition was aggravated by his left knee disability. Thereafter, in a March 2008 opinion report a VA physician reviewed the claims file, to include the July 2003 VA examination report, and opined that what was true in 2003 remained true in 2007, in that there were no known medical studies to confirm that arthritis in one knee would cause or aggravate arthritis in the other knee. Accordingly, the physician found that the Veteran's right knee condition was not caused or aggravated by the left knee disability. Instead, the examiner pointed out that obesity and aging would cause or aggravate knee arthritis. The Board assigns greater weight to the opinions of VA examiners and independent medical opinion in June 2013, because they applied medical analysis to the significant facts of the case. The opinions are reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. Prejean v. West, 13 Vet. App. 444 (2000). The opinions of the VA examiners and the independent physician were based on review of the Veteran's claims file, to include the service treatment records and post-service medical evidence, and included an examination of the Veteran. They also explained why the Veteran's symptomatology was not related to service or the service-connected left knee disability. Nieves-Rodriguez. The Board may consider only competent, medical evidence to support its findings as to questions involving a medical diagnosis that is not capable of lay observation. The Board may only consider competent medical evidence of medical causation because lay assertion on medical causation is not competent evidence. Here the weight of the competent medical evidence is against a finding that the Veteran's current right knee condition is causally related to service, manifested more than 1 year after discharge from service and is not otherwise related to service or a service-connected disability, to include the left knee disability. For these reasons, the preponderance of the evidence weighs against the award of service connection for a right knee disability, and the claim must be denied. In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right knee disability as secondary to the service-connected left knee injury post-arthroscopic surgery for torn medial cartilage and anterior cruciate ligament tear, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs