Citation Nr: 1335554 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-12 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a right and left knee disorders. 2. Entitlement to service connection for a right eye disorder. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to July 1990 and for nine days during the period of time from June 1991 to January 1992. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified before the Board sitting at the RO in November 2009. A transcript of the hearing is associated with the claims file. In February 2010, the Board remanded this claim and in March 2012, the Board reopened the claims on appeal and remanded the claims for further development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal as to the issue decided. The issues of entitlement to service connection for a right eye disorder, a low back disorder and a right shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDING OF FACT A bilateral knee disorder was not manifested until several years after the Veteran's separation from active duty and has not been found by competent and credible evidence to be in any way related to such service; arthritis of the knees did not manifest in service or within one year after separation from service. CONCLUSION OF LAW The criteria for service connection for a right and left knee disorders have not been met. 38 U.S.C.A. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in March 2006 which included information on reopening claims as well as information on service connection claims, prior to the initial unfavorable RO decision issued in August 2006. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist in developing the claims, and his and VA's obligations in providing evidence for consideration. The letter informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist in developing the claims, and his and VA's obligations in providing evidence for consideration. While the Veteran was not provided a notice letter pertaining to effective dates of awards (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)), specifically in this claim, he was not prejudiced by this lack of notice since service connection will not be granted and effective dates will not be assigned. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the claim and providing him with a VA examination. The Veteran's service treatment records, VA treatment records, private treatment records Social Security Administration records, and the report of VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional records that VA needs to obtain to ensure an equitable adjudication of the claim. With regard to VA examinations, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board observes that the examiner reviewed the claims file, noting relevant documents in the file and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran. The examiner then provided findings that were pertinent. There is nothing to suggest that the examiner's findings were incomplete or inconsistent with the other medical evidence contained in the claims file. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the appellant's claims without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the appellant will not be prejudiced by the Board proceeding to the merits of the claim. Service Connection Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is included among the diseases listed as chronic diseases under the law. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" (Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. After a review of the file, the Board concludes that service connection is not warranted bilateral knee disabilities. In this regard, as will be discussed below, while there is evidence of inservice treatment, and current diagnoses, there is no competent medical evidence of a nexus between the disorders and service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010). Evidence Service treatment records show that the Veteran sought treatment in November 1987, nine months after enlistment, for bilateral knee pain that he reportedly experienced for over one year. A clinician noted no recent trauma, normal patellae, no swelling or laxity, and a full range of motion. The clinician noted possible retro patella pain syndrome and prescribed exercises. No knee symptoms were reported by the Veteran or noted by the examiner in a June 1990 discharge physical examination. After service, in an August 2001 statement, the Veteran's mother noted that the Veteran told her that he had multiple joint arthritis from sleeping outdoors in cold weather during Army field exercises. In May 2003, a VA physician noted a review of the claims file including the treatment in service. The physician noted the Veteran's reports of post-service work as a basketball coach, maintenance technician, and U.S. Postal Service mail handler and that he experienced knee pain since service. The Veteran reported that he had been examined while at the Postal Service but did not submit treatment reports as requested by the physician. On examination, there was a full range of motion of the knees. There was no swelling, tenderness and redness of the knees. He could extend to 0 degrees and flex to 110 degrees bilaterally, without pain. X-rays of the bilateral knees were normal. The physician acknowledged the diagnosis of a patellar tendon syndrome in service but concluded that the knees were normal on examination. In June 2006 a VA compensation and pension examination of the right knee was conducted. The Veteran's medical history was documented. The Veteran reported having bilateral knee pain. He denied warmth, swelling or redness of the right knee. The examiner reported no deformity of either knee. He had full range of motion of the left knee without pain and the right knee motion was form 0 to 120 and 0 to 130 at best, limited by right hip and back pain. It was noted there was no pain in the right knee. X-rays were normal and the finding was, no disease of the right knee found today; right knee pain is likely referred pain from the right hip. The examiner stated that therefore the current right knee condition reported by the Veteran is not related to service. VA outpatient treatment records starting in January 2006 show findings for low right knee symptoms and diagnoses of Reiter's syndrome, also termed seronegative spondyloarthropathy for multiple joint pain. The Board has also reviewed US Postal Service records which show workplace injuries right leg in May 1999. The Veteran was examined by VA in April 2012. The claims file was reviewed and the Veteran's medical history was noted. The Veteran was examined. The examiner stated that it is less likely that the current bilateral knee arthritis is related to Reiter's syndrome or other factors like exposure to cold, rigorous use of joints, when the Veteran was in service. The examiner stated that on X-ray, mild degenerative joint disease was noted that is normal aging, and the mild tenderness currently noted on examination on the right knee could be right knee strain. The examiner noted that no ligament or meniscus issues were seen. Discussion The Board finds that the Veteran's claim for service connection for a bilateral knee disorder cannot be granted. The Board notes that the evidence shows that the Veteran was treated in service for bilateral knee complaints and that he has a current bilateral knee disorder diagnosed as degenerative joint disease. However, the claims file does not contain competent evidence showing that the Veteran has a bilateral knee disorder that was incurred in service. Arthritis is present currently but was not shown in service or within the first post service year, and therefore, establishing service connection for the current degenerative condition of the knees requires a nexus between those conditions and the treatment noted in service. Walker, 708 F.3d at 1338-39. Treatment for knee complaints is not shown after service until many years after discharge, and no medical evidence in the file associates the current disorder with service. The only evidence in the file regarding the etiology of his bilateral knee disorder is a negative opinion offered by a VA examiner in 2012. The examiner reviewed the claims file and examined the Veteran. The examiner found that the bilateral knee disorder is not related to service, but rather due to normal aging. The opinions offered were rendered after examining the Veteran and reviewing the records. Rationale was provided and the opinions stand uncontradicted in the record. The claim based on the evidence in the file must be denied as a medical nexus has not been found. As noted above, 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, (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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran is not competent to make a medical determination regarding the etiology of his bilateral knee disorder. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Arthritis is not a disease that is capable of lay observation. Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent evidence with regard either to a diagnosis or a nexus between the current knee disorders and a disease or injury in service. As to the statement offered by his mother, the Board notes that it does not offer competent evidence which establishes a diagnosis or nexus between the disorder and service. Further, to the extent that the Veteran's statements and the lay statement of his mother were offered in this case as evidence of "continuity of symptomatology" regarding the treatment for bilateral knee pain in service, the Board notes that "continuity of symptomatology" is "an alternative route for proving service connection for chronic diseases" which are specifically listed under section 3.309(a) of VA regulations. Walker, 708 F.3d at 1339. Although arthritis is on the list of chronic conditions, arthritis of the knees was not shown or manifested in service, and possible retro patella pain syndrome, which was shown in service, is not one of chronic conditions that is listed under section 3.309(a). Therefore, that alternative route to establishing service connection does not apply in this case. Rather, medical evidence of nexus between the bilateral knee condition today and the knee condition in service is required for service connection, and the only medical opinion of record in this case rules out such a connection. Moreover, as to the lay statement of the Veteran's mother, it is also not competent evidence with regard to nexus, which is required. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In light of the above discussion, the Board must conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disorder, and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a right and left knee disorders is denied. REMAND The Veteran is seeking service connection for a right eye disorder. The record shows that the Veteran sought treatment in service in November 1987 for closure and a burning sensation in the right eye after splashing a "minimal quantity" of gasoline in the eye. A clinician diagnosed chemical conjunctivitis, irrigated the eye, and prescribed antibiotic ointment. In January 1989, the Veteran received several sutures for a laceration above the right eye incurred in a sports event. The sutures were removed from the well healed laceration six days later. In response to the Board's March 2012 remand, the Veteran was examined by VA in April 2012. The examiner was to address the inservice treatment for gasoline in the eye and any other aspect of service. The examiner stated that the Veteran had a diagnosis of uveitis and reiter syndrome and opined that it was not caused by service. It was noted that this was not currently affecting his visual acuity or his ability to work. Dry eye syndrome was also diagnosed and it was opined that this was not caused by service related activity. It was also indicated that the Veteran is presbyopic and required reading glasses. The examiner did not provide rationale for the finding and did not address the inservice exposure to gasoline in the eye, or any other aspect of service, as directed by the Board. As to the low back and right shoulder disorders, service treatment records show that the Veteran sought treatment on two occasions for low back pain and on one of those occasions for right shoulder pain. In May 1988, a clinician diagnosed mild muscle strain and prescribed heat application and muscle-relaxant medication. In December 1988, the Veteran reported that he fell on his back while playing sports. The examiner noted mild muscle spasms but no loss of range of motion. The examiner diagnosed mild muscle spasm and prescribed heat and medication. The Veteran was examined by VA in April 2012. The claims file was reviewed. The examiner noted that the Veteran has low back arthritis. His medical history was documented. An examination was conducted. It was noted that arthritis was confirmed on imaging studies. It was opined that it is less likely that degenerative disc disease of the lumbar spine is related to Reiter's syndrome but was due to normal aging. The examiner also stated that the right shoulder disorder is less likely to be related to Reiter's syndrome but due to aging. In the Board's remand the physician was to provide an evaluation of the Veteran's low back and right shoulder symptoms as well as any multi-joint symptoms associated with Reiter's syndrome or seronegative spondyloarthropathy and provide an opinion whether any disability found is at least as likely as not (50 percent or greater possibility) related to injuries noted in the service treatment records, exposure to cold weather in service, rigorous use of the joints in military activities, or any other aspect of service. A rationale for the opinion was required. However, the examiner did not address the injuries noted in the service treatment records, the claim of exposure to cold weather in service, the rigorous use of the joints in military activities, or any other aspect of service, as directed by the Board. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Court has held that a medical opinion based without supporting clinical data or other rationale, does not provide the required degree of medical certainty, see Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board finds that the March 2012 opinions are not adequate since rationale for the findings was not provided and the examiners did not address the inservice complaints or contentions of the Veteran as mandated by the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally it is noted that the Veteran has not received VCAA notice as indicated in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). On remand notice should be sent to him. Accordingly, the case is REMANDED for the following action: 1. As per the finding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), send the Veteran a proper notice regarding degrees of disability or effective dates for any grant of service connection. Allow him an appropriate amount of time to respond. 2. Return the file to the March 2012 VA eye examiner for an addendum opinion. If that clinician is not available, refer the file to another physician for the requested addendum. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed right eye disorder is related to the Veteran's active duty service, to include his documented inservice treatment. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Return the file to the March 2012 VA orthopedic examiner for an addendum opinion. If that clinician is not available, refer the file to another physician for the requested addendum. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any disability of the back or the right shoulder found is at least as likely as not (50 percent or greater possibility) related to injuries noted in the service treatment records, exposure to cold weather in service, rigorous use of the joints in military activities, or any other aspect of service. A rationale for the opinion is required. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs