Citation Nr: 1334723 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-37 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1972 to May 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veteran's Law Judge in June 2008. A transcript of the hearing is in the Veteran's file. In a December 2010 decision, the Board denied the claims. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2011 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), and vacated and remanded the Board's denial of the service connection claims for the bilateral knee disability. In March 2013 and June 2013, the Board remanded the appeal for further development. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A bilateral knee disability was not affirmatively shown to have been present during service or within a year of discharge, and is unrelated to an injury, disease, or event in service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter sent in May 2007 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and available VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The RO sought to obtain outstanding VA medical records from several VA medical centers (VAMCs) as instructed by the June 2012 Board remand, and consistent with the parties' December 2011 JMPR and the Court's Order. In July 2012, the Veteran indicated that he did not receive any treatment at the VAMCs in Durham, North Carolina, and in the Bronx, New York, between May 1974 and July 2002. Correspondence received from the New York Harbor Healthcare System (including the Manhattan and Bronx divisions) in September 2012 indicated that all records had been transferred to the East Orange facility, which is the New Jersey Harbor Healthcare System. Upon inquiry to the New Jersey Harbor Healthcare System, it was determined that there were no available treatment records from May 1974 to August 2007. The Veteran was notified of the unavailability of VA records from the New Jersey Harbor Healthcare System in January 2013. A formal finding that documented the unavailability of VA records from the Durham/Raleigh VA medical centers, and New Jersey Health Care System was issued in January 2013. The Veteran's records from the Social Security Administration (SSA) have been associated with the claim file. VA examinations were conducted in June 2007, November 2009, November 2012, April 2013 and June 2013. The June 2007 examination report did not include a nexus opinion; therefore the report was inadequate. The Veteran was afforded new VA examinations in November 2009 and November 2012, but the VA examination reports were determined to be inadequate when reviewed by the Board. The Veteran was subsequently afforded VA examinations in April 2013 and July 2013. The Veteran has not argued, and the record does not reflect, that the April 2013 and July 2013 VA examination reports are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). For those conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he has a bilateral knee disability that is related to his military service in a fall from a tree or a pole or, in the alternative, is secondary to his service-connected degenerative disc disease of the thoracolumbar spine. Service treatment records do not reflect that the Veteran fell from either a tree or a pole with injury to either knee during service. The records do show that he reported pain behind his right knee in August 1973; the clinical impression was muscle strain. The April 1974 separation examination did not reveal a right or left knee disability on clinical examination, and the Veteran did not report any knee symptomatology on his April 1974 report of medical history. Subsequent to service, the Veteran reported bilateral knee pain at a July 2002 VA examination. Degenerative joint disease was diagnosed in 2004. Subsequent VA treatment records show intermittent complaints of bilateral knee pain. Of note is a March 2006 VA treatment record showing a finding of low back pain with right leg weakness. Also of significance are records showing the Veteran fell after his right knee reportedly gave-way; he required surgical repair of a right quadriceps tendon rupture in January 2010. At a June 2007 VA examination, the Veteran reported a five-year history of bilateral knee pain. The examiner provided diagnoses of bilateral patellofemoral syndrome and left knee degenerative joint disease, but did not provide any opinion regarding the etiology of these conditions. The Board remanded the claim in February 2008 to obtain a new VA examination that included a nexus opinion. At a November 2009 VA examination, a VA examiner diagnosed bilateral knee patellofemoral syndrome and indicated that this disability was not related to the Veteran's military service. The rationale was that patellofemoral syndrome is usually due to biomechanical changes and occurs over many years of wear and tear. In June 2012, the Board remanded the claim to obtain outstanding VA treatment records and a new VA medical examination and nexus opinion. At a November 2012 VA examination, a VA examiner provided diagnoses of right knee trauma, quadriceps tendon tear, status post-surgical, repair of tendon, with residual scar, and left knee degenerative joint disease. The examiner opined that it is less likely than not that these conditions had onset during military service. In a March 2013 decision, the Board determined that neither the November 2009 nor the November 2012 VA examination report was adequate for adjudication. Therefore, the appeal was remanded for another VA examination. At an April 2013 VA examination, the Veteran reported that he injured his knees while on active duty in 1973 when he fell off a tree while installing telephone cable and landed on his knees. He reported pain in his knees since. He stated that in 2010 his right knee gave way causing him to fall and rupture his right quadriceps tendon. Following the record review and clinical examination, the examiner provided a diagnosis of degenerative arthritis, bilateral knees. The examiner opined that the bilateral knee degenerative joint disease is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In discussing the rationale for this opinion, the examiner noted that the Veteran was evaluated for a complaint of right leg pain in August 1973 and was given a diagnosis of muscle strain. The examiner also noted there was no evidence of any complaints or treatment of any left knee condition during service, or within one year after separation from service. In addition, he noted that the Veteran's clinical evaluation of the lower extremities was normal at his April 1974 separation physical examination. Finally, the examiner stated that a single episode of right knee muscle strain in August 1973 does not cause the development of degenerative arthritis of the knees in 2012. The examiner also opined that bilateral knee degenerative joint disease is less likely than not proximately due to or aggravated by the service-connected degenerative disc disease of the lumbar spine. In providing his rationale, the examiner noted that the reason the Veteran fell and injured his right knee after service, was because his right knee gave away, and not because of his low back condition. The examiner stated that there is no established causal relationship between degenerative disc disease of the lumbar spine and the development of degenerative arthritis of the knees. In other words, degenerative disc disease of the lumbar spine does not cause degenerative arthritis of the knees. The examiner also discussed an August 2003 orthopedic examination of the Veteran's knee joints and noted that he found no evidence in that report to indicate that the Veteran's low back condition had aggravated his knee conditions. The examiner included a discussion of the pertinent findings from the November 2012 VA examination and the current examination findings, and concluded that there is no evidence to indicate that the Veteran's low back condition has caused weakness in his legs, thereby aggravating his knee conditions. The Board remanded the appeal in June 2013 for another medical opinion, noting that the April 2013 VA opinion did not reflect consideration of a March 2006 VA treatment record and the November 2009 VA examination findings. At a July 2013 VA examination with the same examiner that conducted the April 2013 examination, the Veteran restated the history of his bilateral knee injuries. Following the record review and clinical examination, the examiner diagnosed degenerative arthritis, bilateral knees. The VA examiner provided opinions regarding the etiology of the bilateral knee disability, which included consideration of the medical evidence noted in the Board's April 2013 remand. The examiner opined that the bilateral knee degenerative joint disease was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner essentially restated his rationale that was provided in the April 2013 examination report, but also indicated that the Veteran's right knee muscle strain resolved completely, as evidenced by a normal examination of the knees in his separation medical examination in April 1974. The examiner also opined that the bilateral knee degenerative joint disease was less likely than not proximately due to or the result of, or aggravated by, the Veteran's service connected degenerative disc disease of the lumbar spine. The examiner's rationale was very similar to the one provided in the April 2013 examination report, but also included discussion of the March 2006 VA progress note and the November 2009 VA examination findings. Degenerative joint disease of the bilateral knees was not affirmatively shown to have been present during a period of active service. Thus, service connection under 38 U.S.C.A. § § 1110 and 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. Arthritis is listed as a chronic disease in 38 C.F.R. § 3.309(a), thus chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) potentially apply. As the service treatment records lack the documentation of the combination of manifestations sufficient to identify osteoarthritis of the right shoulder, and as there was insufficient observation to establish chronicity at the time on the basis of a single right knee injury noted in August 1973, chronicity in service for arthritis of the bilateral knees is not supported by the evidence of record. Service connection may still be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). Establishing service connection based on continuity of symptoms requires evidence of a nexus between the current disability and the post-service symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran reports post-service continuity of knee symptomatology after service. He also essentially asserts that arthritis of the knees is a continuation of his knee pain in service. While the Veteran is competent to report symptomatology, he is not competent as a lay person to offer a probative opinion on the causal relationship or nexus between the current degenerative joint disease and the post-service symptomatology. Degenerative joint disease is not a condition capable of lay observation. The Veteran has not shown that he is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current degenerative joint disease of the bilateral knees and the continuity of knee symptoms that he reports. As such, his lay opinion is not competent evidence of a causal relationship or nexus between the current degenerative joint disease of the bilateral knees and the continued post-service symptomatology. There is no competent opinion of record which establishes a causal relationship or nexus between the current degenerative joint disease of the bilateral knees and the continued post-service symptomatology. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). As a layperson, the Veteran's lay testimony in support of a nexus between his knee disabilities and service, or his knee disabilities and the service-connected back disability is not competent evidence that is sufficient to establish etiology. This is because a determination of whether degenerative joint disease developed in his knees as a result of an injury in service or, was caused or aggravated as a result of degenerative disc disease of the thoracolumbar spine, or was caused by something else, involves a complex medical determination. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). There is no diagnosis of degenerative joint disease of the bilateral knees until many years after service. Nor has any medical professional attributed his degenerative joint disease of the bilateral knees to his period of military service. Accordingly, the Veteran's unsupported lay assertion that his knee injuries in service caused his current degenerative joint disease, or that his current bilateral knee degenerative joint disease is related to his service-connected back disability is not probative evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). As this lay evidence is not admissible, the Board need not reach the credibility of such evidence. The April 2013 and July 2013 VA medical opinions - that the bilateral knee degenerative joint disease is less likely than not related to service and less likely than not caused or aggravated by the service-connected degenerative disc disease of the lumbar spine - are competent because they were provided by a physician, who is qualified by medical training, experience and expertise to provide such an opinion. The examiner's medical opinions and supporting clinical rationales are highly persuasive as they were exceedingly thorough, well-reasoned, and based on a comprehensive review of the relevant evidence of record including the Veteran's statements. There is no competent opinion to the contrary. Finally, with respect to presumptive service connection for chronic diseases under 38 C.F.R. §§3.307 and 3.309, the first diagnosis of arthritis affecting the knees was in 2004 - well beyond the one-year presumptive period after discharge from service in May 1974. Presumptive service connection for arthritis is not warranted. The preponderance of the evidence is against the claims of service connection, there is no doubt to be resolved; and service connection for a right knee and a left knee disability is not warranted. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs