Citation Nr: 1329643 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-20 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a right knee disability, as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, that denied service connection for a right knee disability. The Veteran filed a Notice of Disagreement in August 2007. The RO furnished the Veteran a Statement of the Case in July 2008, and the Veteran filed a Substantive Appeal (VA Form 9) later in July 2008. In April 2011, the Veteran testified before the Board at a travel board hearing. A transcript of this hearing is included in the claims file. In August 2011, the Board remanded the claim for additional development. The Board notes that VA is free to dismember a claim and adjudicate it in separate pieces. Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). In this case, the Veteran presented, for the first time, the theory of entitlement to service connection on a secondary basis (due to his left knee) in an April 2007 statement. At the time, the Veteran was not service-connected for a left knee disability. However, an August 2012 rating decision granted service connection for a left knee disability. While a decision encompassing all theories of entitlement is generally preferred, bifurcation was appropriate in this case, as development had been with regard to direct and presumptive theories only, and because the secondary theory had not even been legally permissible until recently. Thus, in November 2012, the Board denied the Veteran's direct and presumptive claims with respect to the right knee and remanded the secondary claim with respect to the right knee for additional development. 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 documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence fails to link the Veteran's current right knee disability to a service-connected left knee disability. CONCLUSION OF LAW The requirements for establishing service connection for a right knee disability on a secondary basis have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a May 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection on a secondary basis, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The May 2007 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Board notes that another letter issued in November 2012 also provided the Veteran notice regarding the information and evidence needed to substantiate his claim for service connection on a secondary basis, as well as how disability evaluations and effective dates are assigned. The case was last readjudicated in May 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private medical records, a VA examination report, and hearing testimony. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. 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) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the 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, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's secondary service connection claim. However, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claim, and he also submitted additional new medical evidence that was not already a part of his file. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included providing VCAA notice for secondary service connection and obtaining a VA examination and opinion regarding the secondary service connection theory of entitlement. In response, the RO/AMC sent the Veteran a November 2012 VCAA notice letter for secondary service connection. Additionally, the RO/AMC scheduled the Veteran for a VA examination dated in February 2013 that addressed the issue of secondary service connection. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument, including testifying at a hearing. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis 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 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a 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 of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for disability which is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service- connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As previously mentioned, in a November 2012 decision, the Board adjudicated the issue of entitlement to service connection for a right knee disability on a direct and presumptive basis. Therefore, the analysis below will solely pertain to entitlement to service connection for a right knee disability based on a secondary service connection theory of entitlement. In April 2011, the Veteran testified at a travel board hearing. Testimony revealed, in pertinent part, that the Veteran never specifically injured his right knee during service. The Veteran instead testified that he began favoring his right knee in service and putting more stress on it because his left knee was bothering him. He reported that after discharge from service, he had to undergo cartilage repair operations on both of his knees due to the pain he felt from walking. He stated that the knee surgeries had occurred in the early 1980s. He indicated that it was currently difficult for him to walk. On VA examination in February 2013, the Veteran reported the onset of right knee problems in the early 1960s when he twisted his knee playing football in service. He recalled that the right knee became painful and swollen afterwards and that he was treated with a cast and crutches for 2 weeks. He complained that after the cast was removed, he continued to experience intermittent right knee pain and swelling depending on his physical activities. He maintained that he fell in 1965 and 1973 while going down a flight of steps, and that each fall caused him to subsequently experience increased right knee pain. He indicated that since these in-service events, he continued to experience right knee pain "off and on." He reported injuring his right knee in the 1980s while he was at work cleaning the floors. He subsequently underwent arthroscopic surgery in the late 1980s for a damaged meniscus, which helped for a few years until he had to undergo a second arthroscopic surgery approximately 5 years ago. He complained that post-operatively, he continued to experience persistent right knee pain and stiffness and that by the end of the day, his right knee generally became swollen. He indicated that he was unable to squat, kneel, or climb stairs due to his bilateral knee symptoms, and that physical therapy had not been helpful. He had "knee injections" in the past which provided only short-term relief. He stated that he had been using a 4-wheeled walker to assist with mobility for the past 4 or so years. He maintained that the walker off-loaded both the knees and that he wore an off- loader brace on both knees. Upon examination, the Veteran was diagnosed with right knee degenerative joint disease status post arthroscopic partial medial meniscectomy in 1988 and status post arthroscopic partial medial meniscectomy and medial femoral chondroplasty in 2008. He also had a diagnosis of left knee degenerative joint disease status post arthroscopy in 2009. A September 2012 x-ray of both knees revealed bilateral osteoarthritic changes that were more extensive on the right. The findings with respect to the right knee had progressed when compared to previous August 2007 x-rays, but the findings with respect to the left knee had remained relatively stable. The examiner noted the lack of documentation of any right knee condition during service, including an August 1974 separation examination that found no right knee abnormalities. After a very thorough review of the medical evidence in the Veteran's claims file, the examiner opined that it was not at least as likely as not that the Veteran's service-connected left knee disability caused him to develop any currently diagnosed right knee disorder. She also opined that it was not at least as likely as not that the Veteran's service-connected left knee disability aggravated any currently diagnosed right knee disorder beyone the expected natural progression. The examiner explained that neither of these etiologies was supported by the Veteran's own self-reported history, as his belief that his right knee disorder actually began in service was not supported by the medical record review or the information in the claims file. She further reported that the fact that the Veteran had undergone right knee surgery twice in 1988 and 2008 before ever undergoing left knee surgery in 2009 suggested that his right knee symptoms had been worse than his left knee symptoms, as the need for surgical intervention spoke to the severity of the condition. She stated that it would be difficult to argue that the left knee disability caused or aggravated the right knee disability when the right knee surgeries preceded the left knee surgery. Furthermore, the examiner found that the recent imaging studies dated in September 2012 had revealed that the right knee degenerative changes were more severe than the left knee degenerative changes, and that the right knee degenerative changes had worsened over time while the left knee degenerative changes had appeared to be stable over time. The Veteran had also indicated that his left knee symptoms were stable. The examiner found that it would be difficult to argue that a left knee that was stable symptomatically and on imaging studies would cause or permanently aggravate the corresponding joint on the opposite side, particularly in the absence of any chronic limp. She noted that there was not a single medical record describing a limp favoring or under-using the left side. She explained that if the left side was favored or under- used, that corresponded to relative over-use and stress on the right side. The examiner observed that instead, there was documentation in the medical evidence of a limp favoring the right side in 1988 after he injured the right knee at work. She noted that the Veteran also underwent initial right knee surgical intervention shortly after that injury. The examiner asserted that in order for her to attribute the Veteran's right knee disability to his left knee disability, his limp would have had to be in the opposite direction and be longstanding. However, there was a lack of evidence to support this. The examiner noted that the Veteran's gait was currently slow, but that there was no discernible limp or favoring of one side over the other. Therefore, the examiner concluded that based on the available objective information, she could not invoke any biomechanical explanation that would support the claim that the Veteran's current right knee disability was secondary to or permanently aggravated by his service-connected left knee disability. She indicated that the fact that the right knee degenerative changes appeared worse radiographically than the left knee degenerative changes was most likely due to the 1988 traumatic work injury that was severe enough to prompt surgery soon afterwards. With respect to service connection for a right knee disability as secondary to the Veteran's service-connected left knee disability, the Board notes that at no time did any of the Veteran's treating providers find that his right knee disability was due to or aggravated by his left knee disability. However, the VA examiner who performed the February 2013 VA examination thoroughly reviewed the claims file, interviewed and examined the Veteran, and provided adequate reasoning and bases for the opinions that it was less likely than not that the Veteran's right knee disability was caused by his left knee disability, and that it was less likely than not that the Veteran's right knee disability had been aggravated by his left knee disability. Specifically, the examiner found that secondary service connection was not supported by the Veteran's own self- reported history, as his belief that his right knee disorder actually began in service was not supported by the medical record review or the information in the claims file. She also explained that it would be difficult to argue that the left knee disability caused or aggravated the right knee disability when the right knee surgeries preceded the left knee surgery, suggesting that the right knee disability had been more severe than the left knee disability. Furthermore, the examiner found that it would be difficult to argue that a left knee that was stable symptomatically and on imaging studies would cause or permanently aggravate the corresponding joint on the opposite side, particularly in the absence of any chronic limp. She noted that there was not a single medical record describing a limp favoring or under-using the left side and that while the Veteran's gait was currently slow, there was no discernible limp or favoring of one side over the other. Finally, the examiner explained that the fact that the right knee degenerative changes appeared worse radiographically than the left knee degenerative changes was most likely due to the 1988 traumatic work injury that was severe enough to prompt surgery soon afterwards. For these reasons, the February 2013 VA opinion by the VA examiner is afforded great probative value. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, right knee degenerative joint disease falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of knee pain, any actual diagnosis of a right knee disability requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current right knee disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran himself believes that he has current right knee disability that is due to a service-connected disability, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current right knee disability is not competent medical evidence, as such question requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence, which reveals that a right knee disability is not due to a service-connected disability, is of greater probative value than the lay contentions of the Veteran. In sum, the Board finds that the probative and persuasive evidence establishes that the Veteran's current right knee disability is not due to or aggravated by his service-connected left knee disability. Accordingly, service connection for a right knee disability is not warranted on a secondary service connection basis. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a right knee disability, as secondary to service-connected left knee disability, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs