Citation Nr: 1331506 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 06-07 268A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a chronic right ankle disability, to include as due to service-connected disabilities. 2. Entitlement to service connection for a chronic left ankle disability, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for a chronic right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the VARO in Atlanta, Georgia, that, in pertinent part, denied service connection for disabilities involving the ankles and for a right knee disability, as well as increased ratings for the lumbosacral spine and a left proximal tibial avulsion. Jurisdiction of the Veteran's claims has since been transferred to the VARO in St. Petersburg, Florida. The Veteran's claims were before the Board in September 2010 when the case was remanded to the RO via the Appeals Management Center (AMC) for additional development. In a December 2012 decision, the Board both granted and denied those increased rating claims, and, in pertinent part, determined that new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for right ankle sprain residuals, and the claim was reopened. The Board then remanded the claims for service connection for right and left ankle, and right knee disabilities, to the AMC for additional development. The Board has reviewed the Veteran's Virtual VA records file and they show that after the claims on appeal were last adjudicated by the RO, and a supplemental statement of the case (SSOC) was issued in February 2013, additional records dating from November 2012 through June 2013 were associated with that file. Under 38 C.F.R. § 20.1304, any pertinent evidence accepted directly at the Board must be referred to the RO for initial review unless this procedural right is waived by the appellant. The Veteran did not waive RO review but the Board has reviewed the evidence and determines it consists of previously considered and unrelated VA medical records, not pertinent to her current claims. As a result referral back to the RO for consideration of these records is not necessary. Id. FINDINGS OF FACT 1. A chronic right ankle disability did not have its onset during service, is not shown within one year after service, and is not related to disease, injury, or event of service origin or to a service-connected disability. 2. A chronic left ankle disability did not have its onset during service, is not shown within one year after service, and is not related to disease, injury, or event of service origin or to a service-connected disability. 3. A chronic right knee disability did not have its onset during service is not shown within one year after service, and is not related to disease, injury, or event of service origin or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 3. The criteria for service connection for a right knee disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103,5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002), defines VA's duty to notify and assist a Veteran in the development of claims for VA benefits. Regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those elements are: 1) Veteran status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A review of the evidence discloses the Veteran has received all required notice, has had a meaningful opportunity to present evidence that would help her develop her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1,369 (Fed. Cir. 2004). She has been sent appropriate VCAA letters as recently as October 2012. The claim was most recently adjudicated in a February 2013 (SOC). Regarding the duty to assist, VA has also satisfied its obligation in terms of obtaining all potentially relevant evidence concerning the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical records, and private medical records have been obtained and associated with the claims file. The Veteran also has been provided VA compensation examinations, including the obtaining of medical nexus opinions, concerning the etiology of the disabilities for which service connection is sought. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinions obtained are responsive to the determinative issue of causation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to obtain an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one, or, at a minimum, notify the claimant why one will not or cannot be provided). See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination once such an examination is indicated). The medical evidence of record is adequate to address all pertinent concerns, as the claims file has been reviewed for all relevant medical and other history, the Veteran has been examined, the findings have been reported in sufficient detail, and there has been a discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examination reports of record are thorough and supported by the record. In view of the foregoing, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds it difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence she should submit to substantiate her claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Indeed, in a communication dated in February 2013, the Veteran's representative stated that they had no other information or evidence to submit. They wanted the case decided by the Board as soon as possible. Pertinent Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: 1) a current disability; 2) inservice incurrence or aggravation of a disease or injury; and 3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2013). In addition, arthritis, if present, will be presumed to have been incurred in service if manifest to a degree of 10 percent or more within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309 (2013). Arthritis of any joint may also be proven by evidence of symptom continuity. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pursuant to 38 C.F.R. § 3.310(a), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See Evans v. West, 12 Vet. App. 22, 29 (1998) (noting requirements for establishing service connection on a secondary basis). In order to establish a secondary service connection claim, the claimant must show: 1) The existence of a current secondary disability; 2) the existence of a service-connected disability; and 3) evidence that the service-connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310. A claimant may also establish secondary service connection by demonstrating that his current secondary disability was aggravated or worsened by the already service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (when aggravation of a Veteran's nonservice connected [secondary] condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability as shown prior to the aggravation); Libertine v. Brown, 9 Vet. App. 521, 522 (1996) (additional disability resulting from aggravation of a nonservice connected [secondary] condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a)). If the claimant succeeds in establishing service connection for a secondary condition, "the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail each and every piece of evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). A review of the service treatment records reflects the Veteran was seen on numerous occasions throughout the course of her military career for multiple complaints, many of which have resulted in the award of service connection for disabilities, other than those that remain on appeal. With regard to the disabilities at issue, as for the right knee, the Veteran received treatment in October 1974, after being hit to the knee while in the gym on a bicycle. The knee was described as slightly swollen, but normal functions were reported. She was to return in two days if the condition had not improved. There were no indications she returned. In February 1984 the Veteran was seen for a sprain of the left ankle. She was instructed not to wear or carry chemical or war gear. She was placed on temporary restriction for about two weeks. There was no further mention in the service treatment records of problems with the ankle. Over the years post service records do not refer to complaints or findings indicative of the presence of a chronic right knee or right or left ankle disability. The post service records include the report of a VA Compensation and Pension examination accorded her in November 1993, within a few months after her release from service. With regard to the musculoskeletal system, she reported severe pain in the right upper extremity. There was no mention of a problem with the right knee or the ankles. It was stated on examination that other than the right extremity, the remainder of the body skeleton appeared generally well formed with no other notable joint difficulties or limitations of motion. The post service medical evidence documents the onset of complaints or findings referable to the ankles and the right knee many years following service discharge. This includes a report of a VA outpatient visit in February 2003 at which time the Veteran was seen for a complaint of bilateral knee pain. She first noticed a pain about two months previously after an episode of hypokalemia. At the time of a May 2004 VA outpatient visit, she referred to pain in the right knee that was reported as a recurrent problem that began in January 2003. The pertinent evidence includes the report of a joints examination accorded the Veteran by VA in December 2005. The examiner noted that a review of the claims file reflected the Veteran had been diagnosed with fibromyalgia. The Veteran thought that she had been diagnosed with some type of inflammatory arthritis and also with respiratory syncytial virus in the past, but no specific diagnosis for rheumatoid arthritis despite her multiple joint complaints. Examination findings were recorded. The examiner provided an assessment of inflammatory arthritis because of the involvement of multiple joints. With regard to the left ankle, the examiner stated there were no significant osteoarthritic changes involving the ankle. The examiner noted it was very unusual to get osteoarthritic changes of the ankle without a fracture or some other traumatic event involving the ankles. The examiner stated the Veteran's symptoms "are more related to inflammatory type arthritis since multiple joints are involved." The examiner expressed the opinion that "as far as the bilateral ankles and the right knee, that it is not at least as likely as not or less than 50 percent sure that her ankles or her right knee are connected to her service." The record shows the Veteran was accorded another examination of the joints by VA in August 2008. With regard to the knees, the Veteran stated she had had pains in both knees since the mid-1980's following service. She reported she had been diagnosed with rheumatoid arthritis by VA in 2004. The Veteran stated that she had also had pains in both ankles while in service, and she had also been diagnosed with rheumatoid arthritis involving the ankles in 2004 by VA. Following examination diagnoses were made of rheumatoid arthritis involving both knees and both ankles. The examiner did not relate an opinion as to the etiology. At another examination of the joints by VA in November 2010, the Veteran stated that she had received treatment while in Korea on active duty for ankle sprains. She stated that over the years she had had pains involving both ankles. The examiner opined that "it is less likely as not" that current right ankle disabilities are etiologically related to any inservice ankle sprains. As for rationale, the examiner stated that other than an incident of right ankle sprain in service, there were no significant inservice injuries that could be responsible for mild degenerative joint disease bilaterally many years later. The examiner also stated that "it is less likely as not" that any identified chronic right knee disability had its onset during active service. As for rationale, the examiner stated there is no evidence of any significant injury involving the right knee in service. Following a remand by the Board in September 2012, the case was returned to the aforementioned examiner for an addendum opinion with regard to aggravation or causal connection by the Veteran's various service-connected disabilities. The examiner stated in November 2012 that he had reviewed the claims folder, including the remand, and it was his opinion that "it is less likely as not (i.e., probably less than 50 percent) that the mild osteoarthritis of the ankles and degenerative joint disease of the right knee had their onset during active service; otherwise originated during active service; and/or were caused by or aggravated by a service-connected disability, including the cervical spine disability and associated radiculopathy, lumbar spine disability and associated radiculopathy, and left proximal tibial avulsion fracture residuals." As for rationale, the examiner stated "there were no significant, recurrent, acute or chronic conditions of ankles or right knee in service, other than right ankle sprain, which resolved in time. Also Veteran has been diagnosed with rheumatoid arthritis." The physician also added that "there is no significant or very longstanding altered gait, or paralysis of nerves or muscles due to the cervical spine disability and associated radiculopathy, lumbar spine disability and associated radiculopathy, and left proximal tibial avulsion fracture residuals, to cause osteoarthritis of the ankles and degenerative joint disease of the right knee, as a secondary condition, or aggravation." It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as to any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the first medical evidence of any chronic pathology of the ankles or right knee is shown many years after the Veteran's service, and subsequently arthritis is reported of those joints. The absence of any indication of a relevant intervening medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder). The Board also finds that the opinions of the VA health-care professionals in 2005, 2010, and 2012 are of great probative weight. The physician who reviewed the claims file to provide an addendum opinion in November 2012 opined without hesitation that the Veteran's current bilateral ankle and right knee problems were not related to, or aggravated by, her service-connected disabilities. The examiner gave reasons for his opinion that there was no causal relationship to service or to any service-connected disability. He noted the Veteran had been seen for right ankle sprain in service, but this resolved and he pointed out there were no significant or very longstanding altered gait or paralysis involving the nerves or muscles due to the service-connected disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (probative value of medical opinion comes from its reasoning). There was no medical opinion of record whatsoever to the contrary. The Board acknowledges the Veteran's assertions that her current problems are related to service and/or her service-connected disabilities. However, while laypersons 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, that being the etiology of right knee and ankle disabilities, and causal relationships between a certain disability and the development of another, this falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (laypersons are not competent to diagnose cancer). Such matters require medical knowledge. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran does not assert any such medical knowledge. Further, her assertion at least pertaining to the onset of her knee pain, even considering any continuity of symptoms reported since there is medical evidence of arthritis reported, is contradicted by her own statements as noted at that 2003 VA examination where the Veteran reported a two month history of knee pain, some ten years after her military service. As the medical opinions of record are competent and conclusively stated, and consistent with the record, the Board assigns those opinions great probative weight regarding etiology. As a result, the Board finds that the persuasive evidence regarding nexus weighs against a relationship between the ankles and the right knee on the one hand and the Veteran's active service and her service-connected disabilities on the other hand. As such, service connection for left ankle disability, right ankle disability, and right knee disability under any theory is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as a preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a chronic right ankle disability is denied. Service connection for a chronic left ankle disability is denied. Service connection for a right knee disability is denied ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs