Citation Nr: 1334353 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-22 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right hip disability, claimed as secondary to a knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1965 to October 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Veteran requested a Travel Board hearing; in September 2011 he withdrew the request. These matters were previously before the Board in May 2012, when they were remanded for further development (the Board also granted secondary service connection for 30 percent of the Veteran's erectile dysfunction and denied service connection for a left knee disability). The Veteran had been represented by Oregon Department of Veterans' Affairs. Thereafter, he relocated to San Antonio, Texas and, in June 2012, executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's representative, that designated the Texas Veterans Commission as his representative. HIs claims file is now in the jurisdiction of the Houston, Texas RO. FINDINGS OF FACT 1. The Veteran's right knee complaints in service were acute and resolved without residuals; a chronic right knee disability was not manifested in service; arthritis of the right knee was not manifested in the first year following his discharge from active duty; and the Veteran's current right knee disability is not shown to be related to an injury, disease, or event in service. 2. A right hip injury in service is not shown; a right hip disability was not manifested in service; and the preponderance of the evidence is against a finding that any such disability is related to an injury, disease, or event in service; he does not have a service-connected knee disability. CONCLUSIONS OF LAW 1. Service connection for a right knee disorder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The claim of secondary service-connection for a right hip disability lacks legal merit; service connection for such disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. Letters in July 2005 and August 2007 (prior to the November 2007 rating decision on appeal) explained the evidence necessary to substantiate the claims, the evidence VA is responsible for providing, and the evidence he is responsible for providing. The August 2007 letter also notified him of disability rating and effective date criteria and the evidence necessary to substantiate his claim of secondary service connection (i.e., evidence of a connection between the claimed disability and a service-connected disability). He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in December 2009 and June 2012. The Board finds that those examinations cumulatively are adequate for rating purposes, as the examiners expressed familiarity with the history of the disability and conducted thorough examinations, noting all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO has substantially complied with the May 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). Certain chronic disabilities (including arthritis or degenerative joint disease (DJD)) may be service-connected on a presumptive basis if manifested in a specified period of time following a veteran's discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). However, lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In his May 2005 claim of service connection, the Veteran asserts that his right knee disability resulted from an injury he sustained in service in 1967 and his right hip disability, which also began in 1967, is secondary to his left and right knee disabilities. The Veteran's STRs show that in May 1966 he was seen for a 1 week history of contusion of the right thigh and knee. His musculoskeletal system and lower extremities were normal on clinical evaluation on December 1967 reenlistment examination. A June 1972 right knee X-ray report notes "[t]here is minimal narrowing of the joint space medially. No other abnormalities are recognized." The Veteran's musculoskeletal system and lower extremities were normal on clinical evaluation on October 1973 service separation examination; he did not report any history of knee or hip problems. The initial postservice evidence of right knee complaints is in treatment records generated in connection with the Veteran's Workers Compensation claim, and show that in August 1984 (nearly 11 years after discharge from active duty service) his "right knee locked up" while he was painting a baseboard. Notably, the Veteran's hips were normal on examiantion. A right knee arthrogram showed medial meniscus tear lines and the examiner was 90 percent sure the lateral meniscus was also torn. Workers compensation records show the Veteran underwent right knee arthroscopic meniscectomy in September 1984. Subsequent VA and private treatment records show findings of osteoarthritis, including in the knees (VA X-ray examination in August 2006 showed degenerative changes of the right knee.) In his March 2008 notice of disagreement, the Veteran's representative noted that the Veteran had two different instances of right knee injury in service and continued to have right knee problems (he did not seek medical treatment and self-medicated with over-the-counter (OTC) medications until he reinjured the right knee at work. The representative argued that, because the Veteran's employer "only took responsibility for 15%" of the knee disability, the logical conclusion would be that the knee problem existed prior to the Workers Compensation claim and the only other knee injury was in service. [Notably, the record shows that the Workers Compensation authorized payment for "an award of compensation equal to 30 degrees for 20 percent loss" of the right knee in August 1984 and for "22.50 degrees 15 percent loss" of the left knee in October 1985.] On December 2009 VA examination, after review of the Veteran's claims file, the examiner opined that it is less likely than not that his degenerative joint disease is related to his contusion of the right knee in 1966 and that "a contusion would not cause internal derangement of the knee." The examiner explained that the Veteran's meniscal injuries and Workers Compensation claim are far enough apart that they would not be related to service. Because this opinion did not address/consider the June 1972 report of right knee X-ray (in the STRs) showing "minimal narrowing of the joint space medially;" the Veteran was afforded another VA joints examination. On June 2012 VA examination, after examination of the Veteran and review of his claims file, the diagnosis was DJD of both knees and trochanteric bursitis of the right hip. The examiner opined that it is less likely than not that the Veteran's right knee is related to his injury in service and explained: Only a single visit for a contusion to the right knee in 1966 is found in the records. Following that there are no followup visits, and subsequent reenlistment examination (1967) shows no complaints of knee problems. The veteran was able to serve for an additional 7 years until 1973 without another recorded visit. The x-ray in June of 1972 is insufficient to make a diagnosis (see explanation above). The veteran's history 18 months later on separation examination is that he had no knee complaints. After his discharge in 1973, he worked as a machine operator until an on-the-job injury to his right knee in 1984. We have no recorded treatment for his knee prior to that time. In 1984, he underwent arthroscopic medial and lateral meniscectomies. He now has degenerative joint disease that we know has a more rapid onset after meniscectomy. Thereafter, [t]he records are silent for a period of approximately 18 years that would document continued complaints or treatment. There is no history of documented continuing complaints or treatment to indicate a chronic disabling condition. The examiner commented that the contention that Workers Compensation awarded only 15 percent and the rest of the Veteran's right knee problems are service related is not valid and explained that the disability awarded is based on the injury and the physical examination. Further, as suggested in the above explanation, the examiner noted that there are several problems interpreting the June 1972 report of right knee X-ray: 1. There is no associated clinical note 2. "Minimal" is a nebulous term. Was this within normal limits or not? Without an X-ray of the opposite side, it is impossible to state whether this was normal. 3. He was 26-year[s]-old at that time, and it is extremely unlikely that he had the onset of degenerative changes without any symptoms at that time. 4. The separation examination in October 1973, approximately 16 months later, denies any knee problems. This is the closest medical history we have as far chronology. Right Knee The record shows that the Veteran has a right knee disability, degenerative joint disease. The Veteran's STRs document that he was seen for a right knee contusion in May 1966 and June 1972 X-ray showed "minimal narrowing of the joint space medially." However, the right knee complaints in service apparently resolved (as he was seen on the single occasion without follow-up in May 1966, there is no clinical record associated with the June 1972 X-ray report, and there was no right knee disability noted on October 1973 separation examination (16 months after the June 1972 X-ray report)). Furthermore, there is no evidence that right knee DJD was manifested in the first postservice year; the initial postservice record of right knee complaints is dated in August 1984, nearly 11 years after discharge (and was made following a work-related injury). Consequently, service connection for a right knee disability on the basis that such chronic disability became manifest in service and persisted or on a presumptive basis (for arthritis of the right knee as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. To the extent that the Veteran attempts to substantiate his claim for service connection for a right knee disability by his more recent accounts of continuity of symptoms since service, the Board finds such accounts to be self-serving, compensation-driven, and not credible. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). The accounts are contradicted by contemporaneous (and more probative) clinical data of record. Specifically, the Veteran's service separation examination is silent for any right knee complaints or abnormal findings and his earliest postservice clinical notation of a right knee disability is in connection with a work related injury, to which the disability has been attributed by competent medical evidence (June 2012 VA opinion). Significantly, the length of the intervening period between service and the initial postservice documentation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. What remains then is the question of whether in the absence of onset of chronic right knee disability in service and continuity since, the Veteran's right knee disability may somehow otherwise be related to his remote service (to include as related to right knee complaints noted therein). Whether there is a nexus between a current insidious process such as right knee DJD and remote service/trauma or complaints therein, absent evidence of continuity, is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court"); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The only competent and probative evidence of record in the matter of a nexus between the Veteran's service and his current right knee disability is the opinion of the June 2012 VA examiner. [The Board finds the earlier December 2009 VA opinion to be lacking in probative value because the examiner did not address/consider the June 1972 report of right knee X-ray (in the STRs) showing "minimal narrowing of the joint space medially."] In the June 2012 opinion, the examiner noted the Veteran's right knee treatment in 1966 and the June 1972 X-ray examination report and explained essentially that the complaints in service were acute and resolved without residuals (he also explained that the June 1972 X-ray report is insufficient to make a diagnosis and inconsistent with the other STRs), there were no onging symptoms related to the 1966 right knee injury, and there is nothing in the claims file to suggest the Veteran was having any ongoing problems regarding the right knee after separation from service and prior to his work related injury). As the opinion is by a medical professional competent to provide it, explains the underlying rationale, citing to factual data, and identifies an alternate (nonservice-related) etiology for the current right knee disability it is probative evidence in this matter. As there is no medical evidence to the contrary the Board finds it to be persuasive. The Veteran's own opinion in this matter is not competent evidence. He is a layperson, and does not cite to supporting medical opinion or medical literature. Although it is argued that the Veteran's right knee disability must be related to service because Workers Compensation "only took responsibility for 15%" of the knee disability; the Board does not agree that the logical conclusion is that the remainder of the Veteran's right knee disability is due to service. There is no suggestion in the Workers Compensation records that the Veteran's employer is "responsible" for only a certain portion of the Veteran's right knee disability. Rather, and as suggested by the June 2012 VA examiner, the percentage of disability for which the Veteran's is compensated for his work related injury is based on his overall level of disability as shown on physical examination. This interpretation is supported by the Workers Compenstion determination which shows the level of disability in "degrees." In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the benefit-of-the-doubt doctrine does not apply; the appeal in this matter must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Right Hip It is not in dispute that the Veteran has a right hip disability, trochanteric bursitis. What he must still show to establish service connection for a right hip disability is that it is either directly related to his service or was caused or aggravated by a service-connected disability. The Veteran's STRs, including his October 1973 service separation examination, are silent for complaints, findings, treatment or diagnosis related to the right hip. Consequently, service connection for a right hip disability on the basis that such disability became manifest in service and persisted is not warranted. Notably, although the Veteran has reported the onset of his right hip disability during service (in 1967), he does not argue that his right hip disability is directly related to his service; rather, he argues that it is related to his left and right knee disabilities. See May 2005 VA Form 21-526, Veteran's Application for Compensation and/or Pension. The Veteran's stated theory of entitlement to service connection for a right hip disability is that such is secondary to his bilateral knee disabilities. This decision in pertinent part (see discussion above) affirms the denial of service connection for a right knee disability and, as noted in the Introduction portion above, the May 2012 Board decision denied service connection for a left knee disability. Accordingly, a threshold legal requirement for establishing service connection for a right hip disability as secondary to service-connected bilateral knee disabilities is not met. See 38 C.F.R. § 3.310. There is no service-connected knee disorder to which the claimed right hip disability may be related. Accordingly, the secondary service connection theory of entitlement lacks legal merit, and the appeal in this matter must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a right knee disability is denied. Service connection for a right hip disability, to include as secondary to a knee disability, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs