Citation Nr: 1330833 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-29 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right knee condition. 2. Entitlement to service connection for degenerative joint disease/spondylolysis of the lumbar spine, to include as secondary to a right knee condition. 3. Entitlement to service connection for a total right hip replacement with history of degenerative joint disease, to include as secondary to a right knee condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to October 1987, with additional service in the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for a total right hip replacement with history of degenerative joint disease, degenerative joint disease/spondylolysis of the lumbar spine, and a right knee condition. In November 2009, a hearing before a Decision Review Officer was held at the RO. A transcript of that hearing is of record. In July 2011, the Board remanded this claim for additional development and consideration. All requested actions have been completed and the claim is once again before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issues on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran's right knee disorder is not related to service. 2. A lumbar spine disability was not shown in service or for many years thereafter, and there is no competent evidence linking the current lumbar spine disability to active service, or a period of active duty for training or inactive duty for training. 3. A right hip disability was not shown in service or for many years thereafter, and there is no competent evidence linking the current right hip disability to active service, or a period of active duty for training or inactive duty for training. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 101, 1101, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The requirements for establishing service connection for a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 101, 1101, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013); 38 C.F.R. § 3.310 (2006). 3. The requirements for establishing service connection for a right hip disorder have not been met. 38 U.S.C.A. §§ 101, 1101, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (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 the appellant 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) (2013). The notice requirements of the VCAA require VA to notify the 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) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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). In this case, letters dated in January and October 2005, and March 2006 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2006 letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. This claim was last readjudicated in an August 2012 Supplemental Statement of the Case (SSOC). 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 (STRs), service personnel records, VA treatment records and examination reports, private treatment records, Social Security Administration records, and hearing testimony. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, VA medical records were obtained, and a VA examination with opinion was obtained. The Appeals Management Center (AMC) obtained additional records in an attempt to verify the Veteran's active duty for training dates. While the May 1990 date was not specifically verified, such action is not necessary at this time as the VA examiner considered the May 1990 complaints, but found the current disability was not related to such. Accordingly, verification of the Veteran's duty status in May 1990 would not aid in substantiating the claim at this time. Thus, 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)). In December 2009, the Veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO in which he presented oral arguments 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) (2013) requires that the officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO asked questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered his treatment history and symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this 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 has been an active participant in the claims process by submitting evidence and argument. Thus, the Veteran has been 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 Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran contends that he is entitled to service connection for a current right knee condition because such resulted from injuries sustained during both active service and his Reserve service in the Army National Guard. He also claims that he is entitled to service connection for his total right hip replacement with history of degenerative joint disease and degenerative joint disease/spondylolysis of the lumbar spine because such conditions resulted from injuries sustained during his service in the Army National Guard or are secondary to his claimed right knee condition. Specifically, the Veteran testified during the November 2009 hearing before a DRO that he injured his right knee during active service in April 1987 while playing softball. He also testified that in May 1990 he was performing a weekend drill when he struck his knee against the tailgate of a truck while loading it. He stated that he continued to have problems with his knee after both his period of active service and the incident in May 1990. He endorsed having swelling, sharp pain, and the feeling that it would give out at any time. He said that most of the pain was on the right side of the right knee. The Veteran also testified that during a 2 week drill in May 1998, while loading a Bailey bridge, he slipped and injured his knee and his back. He testified that he saw a company physician immediately and was treated at the Medical Center at Fort Pickett. He said that he had pain in the lower back going down into the lower right extremity, including the right hip. He said that he was given medication and put on bed rest for approximately half of the drill period. He further testified that during a 2 week drill in August 1998, while in a ditch repairing a pipe girder, the girder shifted and stuck him on the right side, causing him to fall approximately 12 feet. He said that he experienced lower back pain and knee trauma and sought immediate treatment. He said that he was again provided medication and was put on bed rest for the remainder of the drill. 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). 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 (2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "veteran" for other periods of service does not obviate the need to establish that he is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Presumptive provisions, such as service incurrence for arthritis if manifested to a compensable degree within one year following discharge from active service, do not apply to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period). 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). Service treatment records reveal that in April 1987, during his period of active service, the Veteran complained of right knee pain. He reported that he slipped and fell three days prior to that time while playing racquetball. Upon physical examination, there was decreased range of motion, tenderness, minimal edema and the Veteran ambulated without difficulty. The assessment was of ligamental strain of the right knee. Treatment included medication and applying heat to the affected area. The records reveal no complaints, treatment, or diagnoses pertaining to the Veteran's right hip or back during his period of active duty. In May 1990, while a member of the Army National Guard, he was seen for pain and swelling of the right knee. The Veteran reported that on a make-up drill several days prior to that time he was loading a truck and hit his right thigh and right patella against the tailgate. He endorsed some swelling on the right lateral side of the patella. The day prior to seeking treatment, the Veteran had been in the field and upon his return noticed swelling in the right upper leg. He was treated with ice in the field. The morning that he sought treatment, he had swelling of the right lower leg, with numbing and burning of the right 5th toe. Upon physical examination, there was soft tissue swelling and the area was hot to touch. The right calf was 1/2 to 1 inch larger than the left and the right knee was tender and swollen. The impression was to rule out deep vein thrombosis of the right calf. On a Report of Medical History dated in May 1991, the Veteran endorsed a history of having a "trick" or locked knee. However, no right knee diagnosis was provided. Private treatment records reflect that X-rays taken in April 2004 revealed right knee joint effusion, grade I spondylolisthesis and degenerative disc disease L4-5 and sclerosis of the left sacroiliac joint, and marked degenerative joint disease versus avascular necrosis of the right hip. Magnetic resonance imaging of the lumbar spine which was also performed in April 2004 indicated 1st degree spondylolisthesis of L4 on L5, but no other acute osseous or soft tissue abnormality was identified. That same month, the Veteran reported experiencing pain in the low back area with radiation to the lower extremity on the right side. He indicated that the problem began several years prior to that time. He also said that he had a traumatic episode 15 years prior to that time when he was in a motor vehicle accident. In that incident, he was ejected through the windshield and had loss of consciousness. Since then, he had been symptomatic getting to the point that he had pain every time he walked and occasionally when he was resting. X-rays taken in April 2005 showed degenerative osteoarthritis complicating apparent aseptic necrosis of the right hip joint, and grade I spondylolisthesis of L4 over L5 and degenerative joint disease of L4-L5 disc. The private treatment records also show he underwent a total right hip arthroplasty in August 2005. The Veteran's VA treatment records show that he has been receiving treatment for his right knee, right hip and back disorders, but do not specifically attribute them to his military service. In fact, the only notation in these treatment records concerning the cause of the disorders is that the Veteran's back pain began in 2003 after he fell from a truck. Importantly, none of the VA treating clinicians attributed the right knee, right hip, or lumbar spine disorders to the Veteran's military service. Upon review of the record, the Board finds that the service connection is not warranted for the Veteran's right knee disability, right hip disability or low back disability. With respect to the right hip and low back disability, the Board notes that the Veteran alleged he sustained injuries to these areas during National Guard training in 1998. However, a March 2010 letter, with attached documentation, from the Department of the Army noted the Veteran was discharged from the reserve on August 26, 1996 and that they had no documentation or medical records for the Veteran for 1998. Thus, as there is no evidence establishing that the Veteran was on ACDUTRA or INACDUTRA in 1998 when he allegedly sustained injuries to the right hip and back, there is no basis upon which service connection on a direct basis may be established for residuals from these alleged injuries. Moreover, service treatment records from his period of active duty reveal no findings of any right hip or low back disability, there is no evidence of arthritis within a year of discharge from his active duty, and there is no medical opinion of record linking his right hip or low back disability to his period of active duty. Accordingly, service connection for a right hip and low back disability is not warranted on a direct or presumptive basis. Turning to the right knee disability, the Board notes the Veteran was seen for right knee pain during his period of active duty. Moreover, for the sake of argument, the Board will accept that the Veteran was on drill status in May 1990 when he struck his right knee on the tailgate of a truck. However, there is no evidence of arthritis of the right knee during active service or within one year following his discharge from active duty. Furthermore, the only medical opinion of record addressing whether the Veteran's current right knee disability is related to his military service, to include the reserve injury, was against the claim. In this regard, the October 2011 VA examiner determined that the Veteran's DJD of the right knee is not related to his military service. He acknowledged the complaints of pain in 1987 and 1990. However, it was noted that there was no evidence of degenerative conditions present mirroring his current findings. The examiner noted the Veteran's own statements that he did not require much care for his right knee after leaving the military, and that the record, likewise, revealed no evidence of continued right knee problems related to the in-service incidents. As such opinion was rendered following claims file review and examination of the Veteran, and contains a rationale for the conclusion reached, the Board accords this opinion great probative weight. See 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."). To the extent that the Veteran himself believes that his current right knee disability is related to his active and reserve military service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. 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). In this regard, the diagnosis and etiology of orthopedic disorders, such as arthritis, requires medical testing to diagnose and medical expertise to determine the etiology. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current right knee disability is a matter that 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."). Thus, the Veteran's opinion regarding the etiology of his current right knee disability is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. The Board notes the Veteran has also claimed service connection for his right hip and low back disability as secondary to the right knee disability. However, as noted above, the Board is denying the Veteran's claim for service connection for a right knee disorder. Thus, as the right knee disability is not service connected, there is no basis upon which service connection for a right hip and low back disability can be established as secondary to the right knee disability. 38 C.F.R. § 3.310. In reaching the above conclusions, 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 Service connection for a right knee disorder is denied. Service connection for a total right hip replacement with history of degenerative joint disease is denied. Service connection for degenerative joint disease/spondylolysis of the lumbar spine is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs