Citation Nr: 1329979 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-03 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In an April 2013 decision, the Board reopened the Veteran's previously denied claim for service connection for a left knee disorder and remanded her bilateral knee claims for further development. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claims. FINDINGS OF FACT 1. The Veteran's current left knee disorder developed more than a year after discharge from service and is unrelated to left knee complaints during service or to any other incident of service, to include her duties as a hull technician. 2. The Veteran's current right knee disorder developed more than a year after discharge from service and is unrelated to right knee complaints during service or to any other incident of service, to include her duties as a hull technician. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). In February 2007 and November 2007, the RO sent letters to the Veteran which advised her of the VCAA, including the types of evidence and/or information necessary to substantiate her claims and the relative duties upon herself and VA in developing her claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letters also advised her of the bases for assigning ratings and effective dates if service connection is granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). These letters satisfy VA's duty to notify. The record reflects that the Veteran's service treatment records, VA medical records, and private medical records have been obtained. On a VA Form 21-4142, received in October 2012, the Veteran indicated that she had already submitted her private treatment records many times before. The Veteran has been provided VA medical examinations. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and she has done so. Therefore, the duty to assist has been satisfied. In April 2013, the Board remanded the claims for further development, to specifically include obtaining private treatment records and scheduling the Veteran for a VA examination in order to obtain a medical opinion. The Board has reviewed the development conducted by the RO, and finds that it has satisfied the Board's remand orders. In particular, in April 2013, VA sent the Veteran a letter requesting that she supply names, addresses and authorizations so that VA could obtain records of any additional private medical treatment she had received for her knees. The Veteran did not respond. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence."). Furthermore, in July 2013, the Veteran attended a VA compensation examination. The Board has reviewed the resulting report and finds that the examination was adequate for rating purposes, given that it was conducted based on a full review of the record, to include the Veteran's lay statements and the duties of a hull technician. The examiner provided a reasoned basis for his conclusion. Thus, there has been compliance with the Board's remand order. In short, the Board finds that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, is service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and arthritis becomes manifest to a degree of l0 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; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). III. History and Analysis On her January 2009 substantive appeal, the Veteran asserted that she had had bilateral knee pain ever since service. She indicated that she did not have the time or the money to seek treatment for her knees every time they bothered her and that is why there was no record of treatment for her knees for many years after service. She reported that she had gone to a regular (private) doctor in January 2009, who told her that there was nothing that could be done for her knees except take anti-inflammatory medication. In October 2010, the Veteran submitted a VA Form 21-4138 on which she asserted that a September 14, 2010 bone scan showed arthritis of the knees. She reported that she was told that the arthritis throughout her joints was most likely caused by the type of work that she did while on active duty. The Veteran submitted a copy of the required job duties of her rating as a hull technician during service. She asserted that she performed the physically demanding tasks specified on the job duty listing for five years, repetitively and every day, while on active duty. The Veteran's service treatment records show that in October 1986, the Veteran complained of right knee pain. She reported no history of knee problems or injury in the past. She requested a knee brace to run in during physical training. Examination revealed slight tenderness of the right knee. In July 1987, the Veteran complained of left knee pain. The assessment was left knee strain secondary to favoring the right ankle. In July 1989, the Veteran complained of left knee pain and left knee pulling sensation. X-rays of the left knee were normal. Examination of the left knee revealed popping and crepitus. The impression was lateral collateral ligament strain. The remaining in-service treatment records are silent for complaints or abnormalities pertaining to the knees. At her May 1991 military separation medical examination, the Veteran completed a report of medical history on which she endorsed several orthopedic complaints but made no mention of any knee disabilities. She specifically denied having or ever having had a trick or locked knee. On clinical evaluation, the Veteran's lower extremities and musculoskeletal system were determined to be normal. On her original claim for VA benefits, received in January 1992, the Veteran claimed service connection for jaw surgery, for a broken ankle, and for a cyst. She made no claims regarding her knees. In the narrative history of a May 1992 VA examination report, she did report having had a "knee injury". The May 1992 VA examiner examined the Veteran's right ankle, but did not provide any comment regarding the Veteran's knees. In June 1992, the Veteran first requested service connection for a left knee disability. She reported that she had very painful and persistent left knee pain and that the left knee sometimes became slightly swollen. In January 1993, the RO denied service connection for a left knee disability on the basis that the service separation examination did not include a diagnosis of a chronic knee disability. A January 2005 VA treatment record notes a history of right knee pain. On VA examination in July 2007, the Veteran reported that her flare-ups of the bilateral knees began when she started her new job three months previously as a golf maintenance personnel worker. The Veteran denied physician-guided treatment of her knees. She reported that both knees gave out, and that she had occasional swelling and bilateral knee stiffness in the morning. The Veteran reported that her knees were stable, and she denied locking, incapacitation, lack of endurance, fatigue, weakness, giving way or buckling. Examination of the knees revealed no edema, effusion, weakness, redness or heat. There was minute patellar crepitus with flexion and extension, but no pain. The knees were stable. X-rays revealed no osseous or articular abnormality. The diagnoses were right knee stable joint retropatellar pain syndrome, and left knee stable joint retropatellar pain syndrome. The VA examiner provided a review of the Veteran's in-service bilateral knee complaints and then noted that from 1989 to present there was no evidence of treatment of the Veteran's knees. He stated that there was an indication that the Veteran had had chondromalacia patellae of both knees while on active duty service, but there was no post service continuity of care to show disability. He opined that the Veteran's current bilateral knee condition was not related to service. A January 2008 VA outpatient record notes that the Veteran reported bilateral knee pain. Private treatment records dated in September 2009 note that x-rays of the Veteran's knees were unremarkable. However, a private examiner stated in September 2009 that bilateral knee x-rays showed mild degenerative changes. The assessment was chronic bilateral knee pain. In September 2009, a private physician provided the Veteran a physical therapy referral form and the diagnosis was listed as bilateral knee tricompartmental arthritis. The Veteran's virtual electronic file contains many VA treatment records. On September 14, 2010, the Veteran was provided a VA bone scan. The bone scan lit up over the elbow, shoulder, bilateral ankles, knees and left wrist. The assessment was mild degenerative joint disease of the left ankle. VA outpatient record dated in December 2010 indicates that the Veteran was a new patient and that she was letting her insurance lapse. The Veteran reported bilateral knee pain and stiffness. Another December 2010 VA treatment record states that the September 2010 bone scan suggested degenerative or inflammatory changes of the wrists and left ankle, but that otherwise the bone scan was unremarkable. The December 2010 VA treatment record also notes that bilateral knee x-rays in May 2010 were normal. An August 2012 VA treatment record notes that the Veteran fell and landed on both knees and they got very bruised. The Veteran reported that x-rays of the knees were negative, but the right knee was still somewhat sore. The Veteran was provided another VA examination of the knees in July 2013. The VA examiner provided a review of the Veteran's medical history and also reviewed the Veteran's duties as a hull technician during service. The examiner noted that the Veteran reported that during service she crawled around heavy equipment, that she crawled around on her knees in small spaces as part of her job, and that she carried equipment up and down stairs. The Veteran reported that she started receiving treatment for her knees at VA about 10 years previously. The Veteran reported that she had had constant knee pain. The examiner noted that radiographs of the left knee were normal in July 2007, and radiographs of both knees were normal in May 2010. The VA examiner reported that the September 2010 bone scan showed no abnormality of the knees. He noted that right knee radiography in January 2013 revealed a normal joint. Examination revealed that the Veteran's knees were stable, had full range of motion, and there was no objective evidence of pain on motion. The Veteran had crepitance of the right knee. The VA examiner stated that the Veteran has retropatellar pain syndrome. He opined that the Veteran's current knee complaints are unrelated to her service. He pointed out that the Veteran's separation physical was silent for knee complaints. He also stated that normal radiographs and bone scans of the knees for more than 26 years after service indicated that there is no knee issue that is related to active duty. In this case, there is no evidence of arthritis within the first post-service year. In fact, all x-rays of the knees since discharge form service have been negative. While a bone scan indicated that the knees had some uptake, the resulting diagnoses did not include knee arthritis. This is in direct contrast to the September 2009 statement by the private physician that the Veteran has bilateral knee arthritis. Regardless, although there is some difference of opinion as to whether the Veteran currently has arthritis of the knees, none of the medical evidence indicated a diagnosis of arthritis of the knees prior to September 2009. Consequently, as the first documented evidence of any such diagnosis is in 2009, more than one year beyond the Veteran's separation from service, service connection for arthritis of either knee on a presumptive basis is not warranted. 38 C.F.R. § 3.309. Turning to the elements of direct service connection, as noted, the Veteran's current diagnosis is somewhat in question. Private treatment records in September 2009 contain a diagnosis of arthritis of the knees. By contrast, subsequent VA examinations, including multiple x-rays as recent as July 2013, have revealed no arthritis, but instead, diagnoses of retropatellar pain syndrome. On the question of whether the Veteran has any current disability of either knee, the Board finds the Veteran's lay statements to be of limited probative value. Although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, the precise nature of the Veteran's current disability of the knees falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Here, arthritis, or other disability of the knee joint, is not observable by a lay person. Specialized testing is required for such a diagnosis. Therefore, the Board finds that the Veteran is not competent to diagnose her knee pain. While pain is generally not a disability for compensation purposes, see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), the Board will further analyze the issue of service connection. The second element of service connection is an event in service. As described above, the Veteran had some complaints in service regarding the knees, and has submitted lay evidence of pain in service. The Veteran is competent to report having had bilateral knee pain in service. Therefore, that element has been met. The remaining element of service connection is a nexus between the current knee disability and service. In this case, the Board finds that the most probative evidence are the July 2007 and July 2013 VA medical opinions against the Veteran's claims. The VA examiner who provided the opinions reviewed the record, examined the Veteran, and determined based on the totality of the evidence that there was no nexus. He provided a thorough explanation his opinions, which are supported by the clinical data. As noted by the 2013 VA examiner, although the Veteran had in-service knee complaints, the Veteran did not have any knee complaints upon discharge from service. Additionally, he noted normal radiographs and bone scans of the knees for more than 26 years after service, indicating that there is no knee issue that is related to active duty. The Board further notes that the record contains no medical opinions to the contrary of the VA examination opinions. With regard to the Veteran's reports that she was told that she has arthritis of the joints, including knees, caused by the type of work she did while on active duty, lay evidence can be competent when the layperson is reporting a contemporaneous diagnosis. See Jandreau. Although this statement appears competent, this statement is inconsistent with the medical evidence of record, i.e., the negative x-rays, which do not confirm a diagnosis of arthritis. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims; therefore, the benefit of the doubt rule does not apply. The claims for service connection for left and right knee disorders must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs