Citation Nr: 1334149 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-40 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right knee disability, status post-total knee replacement, as secondary to service-connected residuals of shell fragment wound (SFW) to the right buttock. 2. Entitlement to service connection for a left knee disability, as secondary to service-connected residuals of SFW to the right buttock, including the right knee. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counel INTRODUCTION The Veteran served on active duty from August 1969 to June 1971. He was awarded a Purple Heart while in service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). That decision, in pertinent part, denied the benefits sought on appeal. In February 2012, a Board hearing was held before the undersigned. The Veteran also testified at a formal RO hearing before a decision review officer (DRO) in August 2009. Transcripts of both proceedings are associated with the claims file. This appeal was previously before the Board in April 2012, December 2012, and May 2013, on which occasions additional development was ordered. In addition to the paper file, the Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. FINDINGS OF FACT 1. The Appeals Management Center in Washington, DC, completed the additional development directed in the May 2013 Board remand. 2. The Veteran's right knee disability is not due to or chronically worsened by the service-connected SFW residuals. 3. The Veteran's left knee disability is not due to or chronically worsened by the service-connected SFW residuals. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a right knee disability have not been met. 38 U.S.C.A. § 5103, 5103A, 5107(b), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.310 (2013). 2. The criteria for an award of service connection for a left knee disability have not been met. 38 U.S.C.A. § 5103, 5103A, 5107(b), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In an April 2008 letter, the RO satisfied its VCAA duty to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The RO notified the Veteran of the information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was also informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Relevant service treatment and other medical records have been associated with the claims file. The RO arranged an examination in February 2010. The April 2012 Board remand, however, determined the examination was not fully adequate for appellate review, as the examiner did not address the issue of aggravation. Hence, the claim was remanded in December 2012 remand to address that issue. The January 2013 Board remand again determined the prior remand was not fully complied with, as the medical examiner's opinion on aggravation was accompanied by any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, another remand was mandated. See Stegall v. West, 11 Vet. App. 268 (1998). The January 2013 VA examination report reflects the examiner conducted a review of the claims file, took the Veteran's reported history, and examined the Veteran. The January 2013 addendum reflects the examiner provided a full explanation for the opinion rendered. The Board finds the examiner's added rationale renders the January 2013 examination of the Veteran adequate, and the AMC fully complied with the January 2013 remand. The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the February 2012 hearing, the undersigned identified the issues before the Board, asked questions of the Veteran that ensured his testimony articulated his claims, and suggested medical nexus evidence that would support the Veteran's claim. Further, the undersigned held the record of the hearing open for submission of additional evidence. Neither the Veteran nor his representative voiced any disagreement with the manner the hearing was conducted. Hence, the Board finds the Bryant notice requirements were complied with. In light of the above, VA has complied with the VCAA notice and assistance requirements. Hence, the Board may how address the merits of the appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). Applicable Law and Regulation A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Service treatment records note that the Veteran sustained a SFW during his combat service in Vietnam. An October 1971 rating decision granted service connection for the SFW residuals, right buttock with retained metal fragment. The Veteran's medical records note currently diagnosed left knee arthralgia with arthritis. The Veteran's right knee is status post-total replacement. Hence, the first two elements of a service connection claim are shown by the evidence of record. The sole remaining issue is whether there is a nexus between the Veteran's bilateral knee disability and his service-connected SFW residuals. At the DRO hearing, when asked when the left knee was injured, the Veteran testified that the left knee disability happened over a period of time. He did not provide a specific onset with respect to the right knee, but described the impact of hurting his right leg, his driving leg. Also, his symptoms had worsened as he aged. The Veteran testified further that his symptoms did not develop until recently. See Hearing Transcript, p. 3, 6. The Veteran's treating VA orthopedist, in an October 2009 letter, noted December 2008 left knee X-rays showing osteoarthritis of the medial femoral condyle. Dr. C also noted the Veteran clinically had experienced left knee pain likely secondary to his "[right] knee/leg/buttock injury, which is service-connected, over the years." The February 2010 examination report reflects the examiner conducted a review of the service treatment records, the Veteran's VA outpatient records, and he took a full history of the Veteran. The records the examiner reviewed documented the Veteran's extensive work history and its impact on his right knee, the severity of which led to the right total knee replacement due to severe arthritis. Based on the Veteran's history, medical records, and the findings on clinical examination, the examiner noted there was no evidence of an in-service knee injury or for several years after discharge. Thus, the examiner opined it was not at least as likely as not that the current knee disabilities were due to the service-connected SFW residual. At the Board hearing, the Veteran expressed his belief that his knee disabilities were secondary to an altered gait, as he had to walk differently over the years as a result. This was especially so regarding the left knee, as he had to rely on it more to compensate for the right knee over the years. The Veteran testified further that he voiced that opinion to his neurosurgeon, Dr. W, who did not disagree with it. The undersigned suggested that the Veteran try and to obtain his doctor's opinion in writing, but no such statement has been received. As noted earlier, following the hearing, the Board remanded for another examination for a medical opinion on whether the Veteran's service-connected SFW aggravated his bilateral knee disability. The May 2012 examination report reflects the examiner conducted a review of the claims file as part of the examination. Based on the review of the claims file and the clinical findings of the examination, the examiner noted the Veteran's SFW of the right buttock and inpatient treatment of multiple wounds of the right buttock and right thigh. The examiner noted further that those wounds healed well without nerve or artery involvement. The Veteran reported that he still had some discomfort due to the right buttock injury but not on a continuous basis, as the Veteran's current medical records noted no complaints related to the right buttock SFW. The examiner opined the Veteran's bilateral knee disability was not aggravated by the right buttock SFW residuals. The Board remanded again in May 2013 so the examiner could provide a rationale for the negative nexus opinion rendered at the May 2012 examination. In the January 2013 addendum, the examiner again noted the current state of the Veteran's right buttock SFW residuals, specifically that the Veteran does not experience continuous symptomatology related thereto. The examiner then noted that the Veteran's bilateral knee disability was part of the natural process of growing older, from the wear and tear on the knee joints. The examiner noted further that the Veteran is obese, which puts extra pressure on his knees. The examiner clearly expressed that the etiology for the Veteran's bilateral knee disability is the aging process and general wear and tear on the joints. In reasoning that the SFW residuals do not aggravate-that is, chronically worsen, the bilateral knee disability, the examiner noted the SFW residuals are generally not symptomatic. The Board finds that the examiner's examination and opinion are adequate, and are not contradicted by the evidence of record. See Nieves/Rodriguez, 22 Vet. App. 295. VA outpatient records of February 2010 note the Veteran's reports that his right knee was symptomatic "especially over the last 10 years, which is not inconsistent with his candid hearing testimony. VA outpatient records of May 2010 note the Veteran's job required him to spend a significant amount of time on his knees. Other medical records note that the Veteran worked as a vending machine repairman for a soft drink company. A May 2010 outpatient entry indicates that the Veteran wrenched his right knee when he fell, due to the impact of the shrapnel. This is significant information, if accurate. The Board notes further that, other than the May 2010 entry, none of the Veteran's treatment reports reference any injury to the right knee. The service treatment records do not indicate complaints by the Veteran related to the right knee and no clinical findings referable to the right knee are shown during active service. Neither does the January 1971 VA examination report, which diagnosed scar residual. There was no other diagnosis related to the SFW, all of which supports the January 2013 examiner's opinion that there are no active SFW symptoms to aggravate the knees. The Board may favor the opinion of one competent medical expert over that of another, provided the reasons for doing so are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Further, while the Board is not free to ignore the opinion of a treating physician, it is not required to accord substantial or greater weight to such an opinion solely because of the status of treating physician. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). An August 2009 entry authored by Dr. C notes the Veteran's request, at the instruction of his representative, for a positive nexus opinion. Dr. C noted that the left knee was the Veteran's only complaint, and he diagnosed left knee arthralgia likely secondary to early arthritis. Dr. C notes he "wrote a letter to indicate some association between his left knee problem to his right chronic buttock injury." The Board acknowledges Dr. C's opinion, but it is not accompanied by any rationale. See Nieves/Rodriguez, 22 Vet. App. 295. Further, his description of the Veteran's right buttock injury as chronic is not consistent with the other medical evidence of record, as noted by the examiner at the May 2012 VA examination. Hence, the Board accords greater weight to the opinion of the examiner who conducted the May 2012 examination. The Board also notes the Veteran's contention that his knee disability is due to an altered gait caused by his SFW. The Board acknowledges that there are certain disorders which a lay person is capable of identifying, i.e., varicose veins. See generally Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board notes further that a lay person may, under certain circumstance provide competent evidence of diagnosis and etiology. Id. Generally those circumstances are where lay reported history is combined with the observation and assessment of a medical professional. In the Veteran's case, he is capable of reporting and describing his bilateral knee symptoms. However, the Board finds a medical determination of whether there is a causal or aggravation nexus between the bilateral knee disability and his service-connected SFW is beyond the training and experience of the average lay person. See 38 C.F.R. § 3.159(a). In sum, as the weight of the evidence is against a finding that the current disabilities of the knees are attributable to active service or to the service connected residuals of a SFW to the right buttock (either directly or by aggravation), the claim must be denied. In reaching the above conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a right knee disability, status post-total knee replacement, to include as secondary to service-connected residuals SFW to the right buttock, is denied. Entitlement to service connection for a left knee disability, as secondary to service-connected residuals of SFW to the right buttock, to include as secondary to the right knee disability, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs