Citation Nr: 1329094 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 05-03 231A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, claimed as degenerative joint disease of the lumbar spine, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the Board denied service connection for the low back and right and left knee disabilities. The Veteran appealed the Board's May 2007 decision to the United States Court of Appeals for Veterans Claims (Court), which in an August 2008 order, granted the parties' joint motion for remand, vacating the Board's May 2007 decision and remanding the case for compliance with the terms of the joint motion. The Board remanded this case for additional development in May 2009 and August 2010. The claims file reveals that except for the medical opinions sought in those remands, there has been substantial compliance with the remand directives such that an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). To that end, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in September 2012; an addendum opinion was sought, and obtained in May 2013. Later in May 2013, the Board informed the Veteran that the Board had obtained a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion, and notified him that he was entitled to submit additional evidence or argument. The Veteran submitted argument and additional medical evidence from VA facilities in June 2013, accompanied by a waiver of Agency of Original Jurisdiction (AOJ) review. Accordingly, appellate review may proceed. FINDINGS OF FACT 1. Service connection is in effect for a right ankle fracture residuals. 2. The preponderance of the evidence shows that the Veteran's low back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected disabilities. 3. The preponderance of the evidence shows that the Veteran's right knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected disabilities. 4. The preponderance of the evidence shows that the Veteran's left knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). November 2003 and December 2003 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although the Veteran was not notified of regulations pertinent to the establishment of an effective date and of the disability rating, the Board finds that no prejudice has resulted as the preponderance of the evidence is against the Veteran's claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). In the aggregate, the February 2004, September 2009, September 2010 VA examination reports and September 2012 (with November 2012 addendum) and May 2013 VHA specialist opinions provide an adequate basis for deciding the Veteran's appeal. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 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). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. 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 (Fed. Cir. 2007). 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). 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, 7 Vet. App. at 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) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The Veteran does not assert and the record does not reflect that his lumbar spine or knee disabilities are directly related to or had their onset in service. His service treatment records do not reflect complaints of back or knee symptoms or evidence of a diagnosed back or knee disability; he denied having a trick or locked knee, swollen or painful joints or bone/joint or other deformity on his June 1964 report of medical history, and the June 1964 service separation examination does not show abnormal clinical findings relating to the knees or back. Further, the record does not contain competent medical opinions linking the Veteran's lumbar spine disability or his bilateral knee disability directly to service; the September 2010 VA and the September 2012 and May 2013 VHA specialist (orthopedist) opinions both state that it was unlikely that there was a direct nexus. The Veteran instead asserts entitlement to service connection for a lumbar spine disability and a bilateral knee disability on the basis that both disabilities are proximately caused by his service-connected residuals of a right ankle fracture with degenerative joint disease and heel spurs and degenerative joint disease of the left foot with calcaneal heel spurs. He credibly reports that he walks with an altered gait as a consequence of these conditions, and claims service connection on the basis these conditions caused or aggravated his lumbar spine disability and/or bilateral knee disability. Review of the claims file reveals several opinions addressing the relationship between the Veteran's lumbar spine disability and/or bilateral knee disability, and the Veteran's service-connected disabilities. With the exception of two of those opinions, they are unfortunately not probative for the reasons discussed below. The February 2004 VA examiner stated that the Veteran's lumbar spine degenerative joint disease was not related to the service-connected right ankle disability. Unfortunately, this opinion provided no rationale, so it is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The September 2009 VA examiner stated that "if one is to take [the January 2004 private chiropractors' statement detailed elsewhere in this decision] as clinical evidence supported by the papers provided, there are just as many papers in the literature that would dispute their claim." He opined that it was less likely as not that the Veteran's back and knee disorders were caused or aggravated by the service-connected right ankle disability. The Board cannot accept this opinion because the VA examiner did not identify the medical literature he referenced, and did not offer support for his argument in terms of clinical findings or the Veteran's medical history; thus, it is also not probative. The September 2010 VA examiner opined that the Veteran's low back, right knee and left knee disabilities were not related to the right ankle disability, based on her review of the "orthopedic literature" and the length of time between the onset of the back and knee conditions and the Veteran's military service. However, the date of onset of the claimed conditions is irrelevant to a claim on the basis of secondary service connection, so it is not clear that the examiner understood the basis of the claim. For this reason, and also because it failed to address the January 2004 private opinion discussed elsewhere, despite being specifically asked to comment on it, it is also not probative. The September 2012 VHA specialist (orthopedist) opinion, which was supplemented by a November 2012 addendum, found fault with the January 2004 opinion of Drs. Mitzelfeld and James that the Veteran had altered gate mechanics resulting from a kinetic chain reaction originating in his foot problems. Instead, the VHA specialist concluded that the premise of altered gait mechanics did not exist, and ultimately found that the spine and knee disabilities were not the result of service or of his service-connected right foot and left ankle disabilities; while the Veteran's knee and spine disabilities may have been temporarily worsened at the time of the Veteran's foot surgery, he concluded that the knee and spine disabilities were not aggravated in the sense of a permanent worsening. VA, through the Board's opinion requests, has conceded that the Veteran's report that he walks with an altered gait as a consequence of the ankle and foot disabilities is a credible one. Thus, the September 2012 VHA specialist opinion is insufficient because it refuses to accept the Veteran's assertion as to his altered gait and VA's concession of it as credible lay evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, only the remaining two opinions can be considered. In a January 2004 statement, Drs. Charles L. Mitzelfeld and Steven C. James opined that the "deleterious relationship between abnormal gait mechanics" and other aspects of the body, such as the back and legs, results in an "increasing probability that biomechanical compensations and their accompanying decompensation, will inevitably occur throughout the human body." The examiners noted that the Veteran had a right ankle fracture in December 1963 during active duty service that has caused "functional hallux limitus of his right foot, which is almost hallux rigidus," and that resulting "gait disturbances" have caused his secondary problems with low back, neck and "many problems throughout his body." Conversely, a May 2013 VHA specialist opinion provided by a different orthopedist that provided the September 2012 opinion that it was not likely that the Veteran developed low back or knee conditions that were caused or aggravated, even in part, by his service-connected right ankle and/or left foot disabilities, to include the aggregate impact of these conditions. While noting that an ankle fracture may cause some arthritic changes in the toe joints, it should not, even with limping, affect the development of remote joints such as the lumbar spine. Further, X-rays showed mild arthritic changes to both knees; while such changes can develop over years after trauma to an extremity, according to the X-ray reports the arthritis has developed symmetrical changes bilaterally. Changes from a unilateral injury would be non-symmetric in nature, so the fact that the arthritic changes of the knee are development symmetrically lends credence to the idea that naturally occurring forces are distributed bilaterally. With the multiple joints involved, to include the Veteran's bilateral hand arthritis, the examiner found that the high stress on weight-bearing joints related to his years of work and recreational activities were likely associated with the development of osteoarthritis. Finally, the examiner concluded, management of the ankle and foot conditions, either conservatively or through surgery, is not ever related to the development of significant, remote arthritic changes and conditions, so natural occurrence is more likely to explain his back and knee conditions, rather than an ankle fracture treated 20 to 30 years earlier. After review of these opinions, the Board finds the May 2013 VHA specialist opinion to be more probative than the January 2004 opinion of the Veteran's private chiropractors. As a threshold issue, the January 2004 opinion did not consider other factors of the Veteran's medical history such as genetics, intercurrent injuries, and aging. See Nieves-Rodriguez. Moreover, the January 2004 opinion appears to have been based on general chiropractic literature, not medical findings specific to the Veteran. While medical treatises are valuable references, they are only probative when used in conjunction with medical evidence specific to the claimant in question, not in place of such evidence. In contrast, the May 2013 VHA specialist opinion accepted that the Veteran's right ankle disability has resulted in a limp - a point previously conceded by VA - but still found that it did not have a causative relationship to the lumbar spine, due to the lumbar spine being too remote from the ankle. He also clearly and thoroughly supports his opinion that the bilateral knee disabilities are not related to the ankle or foot disabilities, both in noting the X-rays showing bilateral and symmetrical arthritis (where a residual of the right ankle injury would be unilateral or asymmetrical) and in noting that the Veteran had degenerative arthritis in other weight-bearing joints in his body, including his hands, affirming the idea the bilateral knee arthritis resulted from age or wear-and-tear as opposed to being secondary to the ankle and/or foot disabilities. Accordingly, with more probative weight assigned to the May 2013 VHA specialist opinion, the preponderance of the evidence is against the claims for service connection. There is no doubt to be resolved, and service connection for a bilateral knee disability or for a lumbar spine disability is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a lumbar spine disability is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs