Citation Nr: 1335989 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-00 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to April 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, on brokerage for the RO in Roanoke, Virginia, which denied the Veteran's petition to reopen his claim for entitlement to service connection for a bilateral knee disorder. The Board notes that the Veteran requested a hearing before the Board in his VA Form 9 dated in January 2007. However, in a written statement in May 2010, the Veteran cancelled his request for a hearing. This matter was previously before the Board in July 2010, December 2011, November 2012, and June 2013. In the December 2011 remand, the Board reopened the Veteran's claim for entitlement to service connection for a bilateral knee disorder. There has been substantial compliance with the mandates of the June 2013 remand and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the paperless claims processing Veterans Benefits Management system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's bilateral knee condition was not incurred in or aggravated by active service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for establishing service connection for a bilateral knee disorder, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and 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. Notice should be provided to the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided notice by letters in September 2005, May 2008, and September 2010. The content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, notice included what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran was afforded VA examinations in January 2012 and January 2013. The Board remanded the appeal to request an addendum medical opinion that was provided in August 2013. The Board finds that the VA opinion was adequate as the examiner reviewed the claims folder, considered the Veteran's history and the examination results, and provided rationales for the opinions offered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310, service connection on a secondary basis may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the course of this appeal 38 C.F.R. § 3.310 was amended. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen, which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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. 38 C.F.R. § 3.159(a)(2). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 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 claimant 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). III. Analysis The Veteran was in a vehicle accident while in service. He was treated for a dislocated hip. He has been service-connected for his hip since April 1975. He was also service-connected for his back in June 1994. While the service treatment records document the accident and his hip dislocation, they are negative for complaints, diagnosis or treatment for any knee problems. The separation examination notes normal results upon clinical evaluation of the knees. The file also contains Social Security Administration (SSA) records. The SSA records show that the Veteran complained of knee pain, but those records indicate that the Veteran receives social security benefits for problems other than his knees. The Veteran was given a VA examination in January 2012. At that examination, the Veteran claimed his left knee began bothering him in 1982 and his right knee began bothering him in 1985. The Veteran reported that his knee pain felt like a 7 on a 10 point scale on the day of the examination. He also stated that at its worst, the pain felt like a 10. He recalled having his knees buckle in 1988 and going to the emergency room and being placed on workman's compensation for one month. The Veteran reported bilateral pain, weakness, instability, locking, fatigability, and lack of endurance. He did not report swelling, heat, or redness. He reported that more than 15 minutes of walking will cause flare-ups. The examiner noted that the Veteran walked with a cane. The Board notes that the examiner did not provide an opinion on the etiology of the Veteran's knee condition. Therefore, the appeal was remanded. The Veteran was afforded another examination in January 2013. The claims file was reviewed by the examiner and the examiner took the full history from the Veteran. The Veteran reported experiencing knee pain since 1990. The pain was described to have been between 5 and 6 on a 10 point scale. The Veteran explained that the pain occurred once or twice a week and lasted 3-4 hours. The examiner noted that the Veteran received VA treatment in 2002 and had X-rays taken of both knees. In the records from 2002, the report noted that the left proximal tibia contained a small bone island. Minor patellar osteophyte formation was seen in the left knee. The right knee was noted as unremarkable. In September 2003, there was an X-ray taken of the right knee. Multiple views of the right knee did "not show any definite articular, bony, or soft tissue abnormality." Again, the impression was that there was a negative finding of any problem with the right knee. The January 2013 examiner also noted the June 2008 X-rays of both knees. At that time, the Veteran complained of increased pain and stiffness in his knees. Frontal and lateral non-weight bearing views of each knee were acquired and showed no evidence of fracture or dislocation. There was mild periarticular spurring of the lower pole of each patella. However, the study was unremarkable otherwise. The impression in 2008 was that there were "no acute findings." The examiner also noted the January 2012 X-rays. The findings showed no fracture or subluxation. The joint spaces were preserved. There were no definite effusions. The report provided that the findings were unremarkable and there was no significant abnormality. At the 2013 examination, the Veteran reported that both knees have a pain score of 8 on a scale of 10. He reported that the pain was daily. He reported that he can walk 3 miles in a day, but after that his knee pain is 10 out of 10. In such cases, he reported taking Percocet and going to bed. He reported being able to stand 10 minutes. At rest, he reported mild pain of 2, but sometimes it could reach 6. The Veteran reported flare-ups and said that "bad weather increased [his] pain." He also reported not working in the last 5 years due to hip and back pain. The Board notes that the RO granted the Veteran entitlement to individual unemployablity effective September 27, 2008. Range of motion was tested at the examination. There was no decrease in range of motion. The Veteran was able to perform repetitive-use testing with 3 repetitions in both knees. The Veteran did have pain on movement in both knees. The Veteran had tenderness or pain to palpation for joint line or soft tissues of both knees. Normal muscle strength was noted in both knees. Normal stability was also noted. The examiner noted that there was no evidence or history of recurrent patellar subluxation/dislocation. It was also reported that the Veteran did not have medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted that the Veteran did have a knee condition. The examiner diagnosed bilateral knee tendinopathy. The examiner opined that the "claimed condition is less likely than not (less than 50 percent or greater probability) proximately due to or the result of the Veteran's service connected condition." The reasoning provided was that the Veteran's knee X-ray in 2008 revealed mild arthritis but his most recent X-ray revealed unremarkable findings. Further, the examiner noted that the Veteran had hip and back disabilities since the 1970's but his knee pain started in the 1980's, yet the knee X-rays taken throughout the years do not support any progression based on the other disabilities. The examiner also noted that the Veteran has never seen an orthopedist for his knees. The examiner noted that the Veteran currently has knee pain but there is no limitation in the range of motion of either knee. Based on the Veteran's age, the knee examination, and the X-ray being unremarkable, the examiner felt that the Veteran's knee condition is less likely as "not aggravated by his hip and back. The Board remanded the appeal after this examination to get an addendum medical opinion that was provided in August 2013. The VA examiner reviewed the claims file, including the previous examination. The examiner noted the Veteran did not have a knee problem in service. The Veteran began complaining about his knees on and off since 1990, 15 years after service. The Veteran began seeking treatment from the VA in 1994, but did not seek treatment for his knees until 2002. The examiner noted that the first X-ray in the file from 2002 showed that the left knee had minor osteophyte, 27 years after separation. The same testing found that the right knee was unremarkable. The opinion also noted that the 2012 X-ray was unremarkable. The examiner opined that it is unclear whether "any significant knee disability of the knee exists at the present time." The examiner concluded that the Veteran's bilateral knee condition was less likely as not incurred in service. The rationale for this opinion was the Veteran's history - he did not report any knee problems until many years after service. The examiner also opined that the Veteran's bilateral knee condition is less likely as not secondary to his service-connected hip or back disorders or aggravated beyond its natural progression by any other service-connected disability. The rationale for this opinion was based on the progression of the bilateral knee condition as evidenced by the X-ray findings. The Board also considered the lay statements offered in support of the Veteran's claim. The Veteran submitted statements from co-workers and family members. Also, the Veteran made lay assertions at his various examinations. The Veteran and lay witnesses are competent to testify on factual matters of which they have first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). They are also competent to report symptoms of his condition. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, lay witnesses are not competent to provide a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the statements from the Veteran's family members and co-workers were focused on his hip and back pain. In terms of the Veteran's statements, his descriptions of his symptoms and history were fully considered by the VA examiners and informed the competent medical opinions of record. The Board notes that the Veteran's representative submitted a brief in October 2013 that argued that the most recent medical opinion remains unclear and the Board should again remand for another medical opinion. The representative based this argument on the examiner's statement that "I am not sure any significant disability of the knee exists at the present time." The Board disagrees. It is clear from the opinion that the examiner is basing this opinion on the radiological evidence that show unremarkable findings. The VA examinations establish that there is pain on movement and the VA examiners have found that there is some current knee disability. The August 2013 opinion is not unclear. The competent medical opinion establishes that there is a disability because of the pain, but there is no limitation in the Veteran's range of motion and there are not radiological findings of any disability. Also, the examiner is clearly stating that it is unclear from the evidence whether there is a "significant" disability, not that there is no disability. Nothing in this statement casts doubt on the examiner's opinion that the bilateral knee condition is related to the Veteran's hip or back disabilities. Turning first to the issue of direct service connection, the evidence of record is clear that the Veteran did not suffer any knee problems in service and did not complain of knee pain until many years after service. The Veteran's own assertions made at his VA examinations establish this fact. Therefore, direct service connection is not warranted. The Board also finds that secondary service connection is not warranted. The competent medical evidence and opinion of record establishes that the Veteran's hip and back disabilities did not cause or aggravate the Veteran's current bilateral knee condition. The VA examiner based this opinion on the X-ray findings throughout the years. According to the medical opinion, the progression of the Veteran's knee condition does not support a finding of secondary service connection. The Board notes that this analysis would be the same under the current version of C.F.R. § 3.310 or the previous version. Accordingly, the preponderance of the evidence is against the claim. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a bilateral knee disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs