Citation Nr: 1335920 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-34 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for the residuals of a total right knee replacement. 2. Entitlement to service connection for the residuals of a total left knee replacement. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2013), the appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran, who is the appellant, served on active duty from January 1955 to January 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In accordance with 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901 (2013), in September 2011 and in December 2012, the Board obtained medical expert opinions from the Veterans Health Administration. The Veteran and his representative were provided copies of the opinions and afforded the opportunity to submit additional evidence and argument. The Board remanded the appeal for additional development in February 2012 and May 2012. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Neither a right knee nor a left knee disability, including arthritis, was affirmatively shown to have been present in service; arthritis was not manifest within one-year of separation from service; the disabilities documented after service are unrelated to an in-service injury, disease, or event; and the disabilities are not caused by or permanently made worse by service-connected disability of the right great toe. CONCLUSIONS OF LAW 1. The criteria to establish service connection for the residuals of a total right knee replacement have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 15107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria to establish service connection for the residuals of a total left knee replacement have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 303, 3.307, 3.309, 3.310 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in November 2008. The content and the timing of the VCAA notice complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. The Veteran was afforded a VA examination in January 2009 and September 2011 and December 2012 VHA expert opinions. As the examination report and opinions are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is fully informed; therefore, the examination and expert opinion are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 and 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service or was aggravated by service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including arthritis, which includes degenerative joint disease and spondylosis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The service treatment records are negative for any complaint, finding, history, treatment, or diagnosis of a right or left knee abnormality. The Veteran did injury his right great toe, which is service-connected. After service, private medical records show that in May 1987, the Veteran injured his left knee at work. In June 1987, the Veteran had left knee arthroscopy with a partial medial meniscectomy and femoral chondroplasty. In May 2005, the Veteran sought private treatment for a history of left knee pain related to the injury in 1987. In August 2005, a private physician stated that Workman's Compensation was covering a total left knee replacement in September 2005. In November 2007, the Veteran had a total right knee replacement. In September 2008, the private physician stated there was a 50 percent probability that the in-service foot injury could have changed the Veteran's natural gait, which could have contributed to bilateral knee osteoarthritis, resulting in bilateral knee replacements. In January 2009 on VA examination, after review of the Veteran's history and the findings on the examination stated that it was not likely that the knee disabilities were related to the service-connected right foot disability. Citing the account of the knee symptomatology and the medical evidence of record, the VA examiner related the bilateral knee arthritic conditions, resulting in total knee replacements, were likely caused by bilateral genu varus. In May 2011, a private physician stated there was a 50 percent probability that the in-service foot injury could have changed the Veteran's natural gait, which could have contributed to bilateral knee osteoarthritis, resulting in bilateral knee replacements. In September 2011, VHA expert stated that the Veteran's right and left knee arthritic disabilities and subsequent total knee replacements were not caused or aggravated by the service-connected foot disability or by service. The VHA expert explained that while a limp could result in arthritis and varus deformity, the left knee disability was clearly due to post-service trauma with subsequent surgical intervention. The VHA expert stated that the right knee disability was due to aging. In December 2012 in an addendum, the VHA expert expressed the opinion that the right and left knee disabilities were not caused or aggravated by a service-connected disability or by active service. Analysis The Veteran does not argue and the evidence does not show that a knee disability of either knee, including arthritis, was affirmatively shown to have had onset during service or that symptoms were noted in service. For this reason, 38 C.F.R. §3.303(a) (service connection based on affirmatively showing onset in service) and 38 C.F.R. § 3.303(b) (service connection based on chronicity and continuity of symptomatology) do not apply. After service there is no medical evidence that a knee disability, including arthritis, is related to an injury, disease, or event in service. 38 C.F.R. § 3.303(d). And as a knee disability was not diagnosed until 1987, presumptive service connection based on the one year presumption following discharge from service in 1959 as a chronic disease is not established. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A simple medical condition is one capable of lay observation. 38 C.F.R. § 3.159 (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 lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Arthritis is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, arthritis is analogous to an internal disease process, that is, not directly observable, as opposed to flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg, which are. For this reason, arthritis is not the type of condition under case law that has been found to be capable of lay observation. As arthritis is not capable of lay observation, the Veteran's assertions that his current knee disabilities are caused by or aggravated by the service-connected right great toe disability are inferences based on facts, that is, an opinion rather than a statement of fact. As arthritis is not capable of lay observation, the Veteran is not competent to offer an opinion on whether his current knee disabilities are caused by or aggravated by the service-connected right great toe disability. And the Veteran's lay statements are not admissible as evidence, that is, the lay evidence cannot be considered as evidence favorable to the claims. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the claimed disabilities and the service-connected toe disability. As the Veteran's lay evidence is not competent evidence on the material issues of fact, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As for the Veteran describing a contemporaneous medical diagnosis by a medical professional, no medical professional diagnosed a knee disability before 1987, more than 28 years after the Veteran's separation from service in 1959. As for symptoms that later support a diagnosis by a medical professional, there is medical evidence favorable to the claims and medical evidence against the claims. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). The medical evidence in favor of the claims are the statements of a private physician who expressed the opinion that there was 50 percent probability that the right foot disability caused arthritis, which in turn, required total knee replacements. The probative value of the statements is diminished, because the record clearly shows that the arthritis of the left knee followed a post-service left knee injury in 1987, requiring a partial medial meniscectomy, which was not related to the service-connected disability and in addition to the service-connected disability the Veteran has a significant genu varus deformity, which was also not addressed. The medical evidence against the claims are the opinion of a VA examiner and the opinion of a VHA expert. In January 2009, the VA examiner stated the bilateral knee arthritic conditions, resulting in total knee replacements, were more likely caused by genu varus than the right great toe disability. In September 2011 and in the addendum, the VHA expert stated that the Veteran's right and left knee arthritic disabilities and subsequent total knee replacements were not caused or aggravated by the service-connected foot disability or by service. The VHA expert explained that arthritis was often idiopathic, however, there are times when it is clearly identifiable due to injury and the Veteran clearly had an injury in "1985" with a subsequent arthroscopy for a meniscal tear and that it is well known that such an injury with surgical treatment leads eventually to arthritic deformity with varus deformity. The VHA expert stated that there was little scientific data that limping due to a foot injury causes arthritis or a varus deformity. The VHA expert stated that the left knee arthritis was excellently explained by the knee injury and the subsequent arthroscopy and the VHA expert concluded that it was less likely than not the left knee arthritis with varus deformity was caused by or aggravated beyond natural progression by the service-connected right foot condition. As for the right knee, the VHA expert stated that the record did not document why or how arthritis developed in the right knee. The VHA expert stated that arthritis was common with aging and that there was no strong scientific evidence that surgery for the right foot, which the Veteran had, could cause or aggravate arthritis in the right knee beyond natural progression. The VHA expert concluded that it was less likely than not that arthritis of the right knee was caused by or aggravated beyond natural progression by the service-connected right foot condition. In considering the analysis of the medical opinions and the conclusions rendered in the opinions that the Board can consider and weigh, the Board finds that the opinion of the VHA expert outweighs the opinion of the private physician, because the VHA expert applied valid medical analysis to the significant facts of the case in order to reach the conclusions reached in the medical opinion. For example, the VHA expert consider other risk factors for the Veteran developing arthritis, namely, an identifiable left knee injury and a subsequent arthroscopy for a meniscal tear, a varus deformity, and aging. And the VHA expert stated that there was little scientific data that limping due to a foot injury caused arthritis or a varus deformity. The opinion of the private physician did not consider the other risks factors. For these reasons, the preponderance of the evidence is against the claims of service connection, including as secondary to the service-connected disability of the right great toe, and there is no doubt to be resolved, and service connection is not warranted. ORDER Service connection for the residuals of a total right knee replacement is denied. Service connection for the residuals of a total left knee replacement is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs