Citation Nr: 1328261 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-28 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This issue, as well as the issues of entitlement to service connection for a left shoulder disorder and an acquired psychiatric disorder, to include, PTSD, was previously before the Board in December 2012. At such time, the Board granted service connection for a left shoulder disorder, diagnosed as left shoulder tendonitis and rotator cuff tear, status post repair, and remanded the remaining issues for further development. Thereafter, a January 2013 rating decision effectuated the Board's grant of service connection for a left shoulder disorder. Additionally, while on remand, a July 2013 rating decision granted service connection for PTSD. Therefore, these issues are no longer before the Board. Additionally, with respect to the issue of entitlement to service connection for a left knee disorder, as will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the December 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran testified before the undersigned Veterans Law Judge via video-conference in February 2012. A transcript of the hearing is associated with the claims file. Additionally, at the hearing, the Veteran's representative also made a motion to advance the Veteran's case on the docket; however, the motion was denied by the Board in November 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. Finally, in the December 2012 remand, the Board noted the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) had been raised by the record, but had not been adjudicated by the AOJ. See video-conference hearing transcript, pp. 30-31. Such issue was referred to the AOJ for appropriate action. It is unclear whether or not the AOJ considered the issue, therefore it is referred once again for appropriate action. FINDING OF FACT A left knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 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 the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. An April 2008 letter, sent prior to the initial July 2008 rating decision that denied the Veteran's claim, advised him of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the April 2008 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service VA and private medical records, including Social Security Administration (SSA) records, are of record and were reviewed by both the AOJ and the Board in connection with the Veteran's claims. The Veteran has not identified any additional outstanding records that are pertinent to his appeal. In December 2012, the Board remanded the case in order for the AOJ to obtain any outstanding private treatment records and afford the Veteran a VA examination so as to determine the current nature and etiology of his left knee disorder. The AOJ contacted the Veteran by a January 2013 letter requesting that he provide information and authorization to obtain any outstanding private treatment records; however, he did not respond to the January 2013 letter. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). The Veteran was afforded a VA examination in June 2013 with respect to the issue decided herein. The Board finds that the opinion of record is adequate to decide the issue as it is predicated on a review of the claims file, which includes the Veteran's statements, his service treatment records, and post-service treatment records. Additionally, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Therefore, the Board finds that the opinion is adequate to decide the Veteran's case as the examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). As indicated previously, the Board remanded the case for additional development in December 2012. As discussed in the preceding paragraphs, the Veteran was provided with an opportunity to identify any additional treatment records and a VA examination and opinion regarding the etiology of his left knee disorder was obtained in June 2013. Therefore, the Board finds that the AOJ has substantially complied with the December 2012 remand directives such that no further action is necessary in this regard. See D'Aries, supra. Additionally, in February 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the February 2012, hearing, the Veterans Law Judge noted the issue on appeal. Also, information was solicited regarding the Veteran's in-service experiences he contends resulted in his left knee disorder, the type and onset of symptoms, and his contention that his military service caused his disorder. Therefore, with respect to the issue adjudicated herein, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the Board remanded the case in order to obtain additional evidence, to include a VA examination and opinion addressing the etiology of the Veteran's left knee disorder. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546(1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted 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(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes, however, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Id. In making all determinations, the Board must fully consider the lay assertions of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends, through written statements and oral testimony, that his current left knee disorder is as a result of his active military duties that required he crawl under aircraft and load aircraft ordnance. The Veteran's service treatment records (STRs), including the August 1977 separation examination, do not contain any complaints, treatment, or findings related to a left knee problem or disability. In this regard, clinical evaluation of the lower extremities was normal at the time of the Veteran's August 1977 separation examination. Post-service treatment records include a copy of a December 2007 operative report from Texas Orthopedic Hospital, which documents the Veteran's left knee surgery. There are no other references in the treatment records, to include VA, SSA, and private records, relevant to the Veteran's left knee. During the February 2012 hearing, the Veteran testified that he did not seek any treatment for his left knee during service. He did testify, however, that he was seen after service for his left knee disorder. However, as indicated previously, he did not provide the necessary authorization and consent form so as to allow VA to obtain such records. On June 2013 VA examination, the Veteran reported that he currently experienced no left knee pain. He reported that his knee just felt weak. He indicated that he did not take any medications. There was no swelling, locking, or instability. Left knee range of motion was normal. Left knee degenerative joint disease was diagnosed. The examiner opined that the Veteran's left knee disorder was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner noted that there was no evidence in the Veteran's STRs of a left knee problem. Additionally, the examiner noted that the Veteran indicated that by history that he had no left knee problem in the service, and that he did not experience left knee problems until many years after service. The Veteran reported that, post-service, he worked in refineries, climbing ladders, and constantly on his feet all day long. He reported no history of a specific left knee injury. Therefore, the examiner found that, since there was no STR evidence of a left knee problem, and he admitted no specific left knee injury or problem in the service or until many years later, there was no nexus connection of his left knee to the service. As indicated previously, as the June 2013 VA examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two, the Board accords great probative weight to his opinion. See Nieves-Rodriguez, supra; Stefl, supra. Moreover, the Veteran's STRs fail to note any reported left knee pain associated with any in-service disease, event, or injury. Furthermore, as noted, the Veteran offered no left knee complaints during his separation examination; and clinical evaluation of the lower extremities was normal. Similarly, while the Veteran reported that he received treatment for his claimed disorder after his separation from service, there is no evidence of such treatment associated with the claims file and the Veteran failed to provide VA authorization to request medical records on his behalf. The earliest evidence of record of treatment for his left knee disorder is found in a private treatment record from Texas Orthopedic Hospital dated in December 2007. This contemporary medical evidence, dated nearly 30 years after the Veteran's separation from service, does not support his contention that he incurred the left knee disorder during service. In light of such evidence, the Board finds that presumptive service connection for the Veteran's left knee disorder is not warranted as the record fails to show that he manifested arthritis to a degree of 10 percent within the one year following his active duty service discharge in August 1977, or that he has experienced continuity of knee symptomatology that has been identified as arthritis. In this regard, the Veteran specifically stated he did not experience left knee problems until many years after service at the time of his June 2013 VA examination. As such, presumptive service connection is not warranted for a left knee disorder, to include on the basis of continuity of symptomatology. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; see also Walker, supra. While the Veteran may be sincere in his belief that his claimed left knee disorder incurred as a result of an in-service injury or event, to include his in-service duties that necessitated crawling, he is not competent to provide an opinion regarding the etiology of such disorder merely through his own assertions. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Specifically, the question of causation of an orthopedic disorder, to include those affecting the left knee, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Based on the foregoing, the Board finds that a left knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. Therefore, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board notes, however, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left knee disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a left knee disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs