Citation Nr: 1330512 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-23 306A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right ankle disability. ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1986 to February 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2012 and June 2013. It was remanded for additional development of the record and to ensure due process. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. In a March 2012 statement, the Veteran appears to be claiming to be unemployable due to multiple disabilities, stating he has been unable to work since June 2011 due to his knees and right ankle. This issue has not been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT A left knee disability was not shown in service or for many years thereafter, and the most probative evidence indicates his current left knee disability is not related to service or service-connected right ankle disability. CONCLUSION OF LAW The requirements for establishing service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist 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)) 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 a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 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, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a May 2008 letter and an October 2012 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has obtained relevant records including service treatment records, post service treatment records, VA examination reports and a VA medical opinion. The Board notes that actions requested in the prior remands have been undertaken. VA treatment records have been obtained and associated with the Veteran's claims file. In addition, a VA examination was conducted in February 2013 and a July 2013 medical opinion has been obtained. 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 Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim. Therefore, 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 notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends that his left knee disability is attributable to his service-connected right ankle disability. 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. 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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). 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 that a current disability exists and that the current disability was either caused by or 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). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be competent evidence of a current disability and competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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 Board has reviewed all the evidence in the record. 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 appellant 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). The Veteran's service treatment records are silent for complaints, treatment, or findings of a left knee condition. They show that he sustained a right ankle sprain in service. Service connection for degenerative arthritis of the right ankle joint was established by a February 2009 rating decision. Post-service private treatment records dated in August 2006 shows the results from a magnetic resonance imaging (MRI) test. The record reflects that the Veteran had a large joint effusion in the left knee. The MRI also showed that the Veteran's left knee ligaments and tendons were intact and there was no sign of a meniscal tear. February 2007 VA treatment notes reflect the Veteran complained of left knee pain. It was noted that an X-ray and MRI studies of the Veteran's left knee showed no abnormalities. May 2010 and December 2010 private medical records show that the Veteran was observed for left knee pain. The Veteran was afforded a VA examination in February 2013. The examiner reviewed the Veteran's claims file. The Veteran stated that his left knee pain had its onset in service. He indicated that his left knee pain is secondary to his right ankle disability. The examiner noted that the Veteran reported his left knee did not start "going bad" until 2006. The Veteran indicated that flare-ups do not impact the function of his knee or leg. Upon examination, the Veteran's left knee flexion was 130 degrees and there was no objective evidence of painful motion. Degenerative or traumatic arthritis was not found during the examination. The examiner diagnosed left knee chronic suprapatella effusion, but with a stable joint. The examiner concluded that the Veteran's left knee pain was less likely than not incurred in or caused by the Veteran's military service. The examiner noted that the Veteran's service treatment records were silent for a left knee condition, and that his physical profile reveals the high standards designation. The examiner further noted the case file was silent for left knee issues on his master problem list. The examiner also opined that the Veteran's left knee disorder was less likely than not proximately due to or the result of the Veteran's service-connected right ankle disorder. The examiner noted that the evidence of record shows post-service trauma to the Veteran's right ankle in approximately 2004, which the Veteran neglected to share with the examiner, and which the examiner noted was the cause of the current ankle complaints. He further noted that there was no residual muscle impairment from the in-service injury. The examiner stated that the results of the private MRI dated in August 2006 was requested due to a complaint of derangement and showed a large effusion. The examiner stated that there was no aggravation found of the left knee by the service-connected right ankle and that the left knee disability is an independent factor post service, without evidence of ligament, menisci, or articular cartilage problem. A VA treatment record dated in May 2013 shows that the Veteran was treated for a swollen left knee. A July 2013 medical opinion was requested to clarify a boxed checked on the February 2013 examination suggesting the Veteran's left knee disorder pre-existed his active duty service. In the addendum, the examiner noted such box was checked in error, and that the Veteran's left knee disorder did not pre-exist service. He reiterated that the left knee condition was not aggravated by the Veteran's service connected right ankle disability. Further, the examiner stated that the Veteran's left knee disorder was not caused by or a result of active duty or the right ankle. The examiner noted that there was nothing that supports a nexus to service or to the right ankle. After a review of the entire record, the Board finds that the preponderance of the evidence is against the claim of service connection for a left knee disability. The record reveals no complaints, findings, or diagnosis of any left knee disability during service or for many years thereafter. Moreover, there is no medical opinion linking the Veteran's left knee disability to service. In the February 2013 examination, the examiner opined that the Veteran's left knee disability was less likely than not incurred in or caused by the his military service. In rendering this opinion, the VA examiner, reviewed the claims file and examined the Veteran, and provided a rationale for the conclusion reached. As such, this opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The private medical records submitted in support of his claim do not address a relationship between the Veteran's current left knee disorder and service, and there is no medical opinion of record contrary to the VA examiner's conclusion. While the Veteran alleges that he has had knee pain ever since service, the Board finds the contemporaneous service treatment records to be more probative than the Veteran's reports being made 20 years after his discharge. Moreover, such contention is inconsistent with his report to the VA examiner that his left knee went "bad" in 2006. Finally, his denial of any post service ankle injury is inconsistent with evidence of record reflecting a fracture to the right ankle in 2004. Of note, his service treatment records reveal no bone injury, only a very deep laceration in the right ankle area. Thus, the Board finds the Veteran's lay assertions lack credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). The Veteran also contends that his left knee disability is due to his service-connected right ankle disability. Specifically, he alleges that but for his right ankle disability, his knee would be "good." However, the VA examiner, following claims file review and examination of the Veteran, opined that the Veteran's left knee disability was not caused or aggravated by the Veteran's service-connected right ankle disability. The examiner provided a rationale for the conclusion, and such opinion is entitled to significant probative weight. See Nieves-Rodriguez, supra. There is no medical opinion to the contrary. While the Veteran has alleged that his current left knee disability is related to service or to his service-connected right ankle disability, there is no indication that he has specialized training in diagnosing knee disorders or determining their etiology. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of a knee disability requires medical testing, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Thus, the Veteran's own opinions regarding the etiology of his current left knee disability are not competent medical evidence. The Board accords significantly greater weight to the opinion of the VA examiner than to the Veteran's lay assertions. The Board has considered the lay statements of his friend and former employer regarding his knee pain. In a May 2008 statement, his friend stated that the Veteran's left knee would swell and impair his ability to work. The Veteran's former employer noted in a July 2008 statement that he could hear the joints in the Veteran's knee pop when he would walk or bend over. While they are competent to describe their observations, none of these statements provide observations as to knee complaints during service, nor do these lay statements contain competent opinions regarding a nexus between the Veteran's left knee disability and service or service connected right ankle disability. In this regard, there is no indication that either person has medical training such that they are competent to provide medical opinions on the etiology of knee disorders. The Board, again, finds the opinion of the VA examiner to be significantly more probative than the lay assertions. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a left knee disability. The most probative evidence indicates that this condition did not have its onset during active service or for many years thereafter, and is not otherwise related to military service. The most probative evidence further indicates that the left knee condition is neither caused nor aggravated by the service-connected right ankle disability. Therefore, service connection for a left knee disorder is denied. In reaching the above conclusion, 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs