Citation Nr: 1336136 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-28 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 1980 through July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified during an August 2011 video conference hearing that was held before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the record. The Board previously remanded this matter in September 2012 to the Appeals Management Center (AMC) in Washington, D.C. for additional claims development, to include affording the Veteran a VA examination of his knees and readjudicating the issues on appeal. The Board is satisfied that the directed development action has been performed and is prepared to proceed with its de novo consideration of the issues on appeal. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran has current bilateral knee disabilities that were sustained during, or resulted from, an injury or illness incurred during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, pre-rating letters mailed to the Veteran in September and November of 2009 notified her of the information and evidence needed to substantiate her claims for service connection for right and left knee disorders. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, her claims were adjudicated in the RO's December 2009 rating decision. Thus, because the VCAA notice that was provided before the Veteran's service connection claims were adjudicated were legally sufficient, VA's duty to notify has been satisfied. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, service personnel records, VA treatment records, identified and relevant private treatment records, social security records, and lay statements expressed in her claims submissions have been associated with the claims file. The Veteran was also afforded a VA examination of her knees in October 2012 to determine the nature and etiology of the disorders in her knees. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the nature and etiology of the Veteran's knee disorders. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). For such disabilities, a claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). The Veteran alleges in her claims submissions and during her August 2011 video conference hearing that she sustained a right knee injury during her active duty service and that she subsequently experienced continuous symptoms that have continued through the present. She explained during her hearing that she did not report the problems in her right knee at the time of her separation from service because she was self-treating her condition. Regarding her left knee, she testified that, according to her treating physicians, her left knee was aggravated by her right knee problems. Although she acknowledges that she did not begin treating her knees after service until 2009, she alleged that she was not aware that she was eligible to receive VA treatment until that time, and for that reason, received private treatment with Dr. W.J. instead. During her hearing, the Veteran and her representative identified that the scope of the claims at issue were to be limited to service connection for arthritis and degenerative conditions in the Veteran's knees, and were not to include consideration of any residuals that may have resulted from cyst conditions in her knee. The Board will consider the Veteran's claims, mindful of the foregoing. Somewhat consistent with the Veteran's assertions, service treatment records show that the Veteran was treated during service in September 1982 for right knee pain. An examination of the right knee at that time revealed a small cyst located near the joint line of the right knee that was manifested by exquisite tenderness and warmth. The Veteran was treated with medications. During follow-up treatment four days later, the Veteran reported that her right knee was asymptomatic and pain free. At that time, the Veteran's cyst was found to have resolved. Indeed, subsequent service treatment records do not reflect any further right knee complaints or any treatment, objective findings, or diagnoses pertinent to the right knee. The service treatment records are entirely silent for any complaints or treatment pertinent to the Veteran's left knee. Despite the Veteran's testimony that she became first aware of her eligibility for VA treatment only in 2009, the post-service treatment records include VA treatment records pertinent to treatment received by the Veteran beginning in 2000. The earliest reference to knee problems is a September 2003 problem list entry which makes a single line reference to knee arthralgia. The record does not specify which knee was involved, nor does it provide any information as to any subjective complaints or objective findings supporting such a diagnosis. Concurrent with the foregoing, the Veteran was afforded VA psychiatric and general physical examinations in July 2002. Although these examinations were not focused upon the Veteran's claimed knee disorders, the Board nonetheless notes that, during her July 2002 psychiatric examination, the Veteran did not report any prior history of knee problems in providing her medical history. Similarly, during the July 2002 VA general examination which was focused on various orthopedic conditions to include spine problems and edema, the Veteran once again did not report any history of continuous knee problems dating back to service. Voluminous records obtained from the Social Security Administration (SSA) includes a December 2002 disability examination which did not note any knee complaints or abnormalities or any reported history of knee problems. During physical examination, the Veteran was able to produce 145 degrees of flexion in both knees, which constitutes full range of motion (indeed, Federal regulations note that full knee motion consists of flexion to 140 degrees, see 38 C.F.R. § 4.71, Plate II). The subsequent post-service treatment records do not reference any reported problems or findings in the knee until an April 2008 VA treatment record, which notes that the Veteran complained of right knee pain during a general physical examination that was performed in conjunction with evaluation and treatment for a low back disorder. Right knee x-rays were taken; however, these studies were negative for abnormalities. Subsequent treatment records indicate another lengthy hiatus in any reported knee problems until VA treatment in June 2009, at which time the Veteran complained of right knee knot with associated pain that had been ongoing for the past month. An examination of the right knee performed at that time revealed that the knee was tender to touch and that the bursa was filled with fluid. Nonetheless, no specific diagnosis was given, nor was any opinion rendered as to the cause or origin of the Veteran's complaints. Right knee x-rays performed the following month, in July 2009, indicated mild tricompartmental degenerative joint disease, but overall, was interpreted as being negative for any acute processes. Fluid was drained from the Veteran's right knee. During VA treatment in August 2009, the Veteran continued to complain of right knee pain that began in May 2009. A physical examination revealed a small area of swelling, but was otherwise normal. Somewhat contrary to the prior studies from July 2009, right knee x-rays performed at that time did not reveal any evidence of fractures or degenerative changes. The treating VA physician diagnosed a low grade infection. Later that month, the Veteran sought private urgent care for her right knee at Wellfast Urgent Care Center. An examination of the right knee was positive for swelling and tenderness; however, x-ray studies were again negative. A diagnosis of pretibial bursitis was made. The Veteran returned for follow-up VA treatment in September 2009 and continued to report anterior right knee pain that radiated laterally with associated heat and erythema. Once again, the Veteran reported that the right knee pain began in May 2009. Stated that she had her knee drained on three occasions and that pain and fluid subsequently returned each time. A repeat physical examination of the right knee revealed full strength and motion, although a firm and palpable knot was detected in the anterior right knee. Again, x-rays did not reveal any fractures, degenerative changes, or asymmetric swelling. During subsequent follow-up later that month, the Veteran's right knee did not demonstrate any notable changes. No specific diagnosis was given in relation to the knot detected in the right knee, nor was any opinion stated as to the cause or origin of the knot. A private October 2009 record from Dr. W.A.J. notes that the Veteran was seeking a second opinion regarding her right knee. At that time, she reported a medical history which included infection of prepatellar bursitis which was improved with antibiotics and aspirations, but with ongoing pain over her anterior knee. An examination revealed tenderness over the prepatellar bursa, but without signs of redness, erythema, or edema. McMurray test was positive and minimal tenderness was present over the posterior medial knee. Demonstrated right knee motion included flexion to 130 degrees. Dr. W.A.J. diagnosed prepatellar bursitis and internal derangement of the right knee; however, recommended a right knee MRI for further diagnostic study. This MRI was performed later that month and confirmed prepatellar bursitis as well as mild to moderate osteoarthritis and low-grade chondromalacia. In an opinion letter prepared in November 2009, Dr. W.A.J. restated diagnoses of right knee prepatellar bursitis and osteoarthritis. He stated that he had reviewed the Veteran's service records and noted that she had been evaluated for right knee pain during service in 1982. He noted further that no radiological studies were performed, apparently suggesting the possibility that the Veteran had degeneration in her right knee as early as 1982. Overall, he opined that these conditions were connected to her active duty service, and as basis, noted that the Veteran's service was marked by running, jumping, and squatting on a daily basis, and duties which required her to frequently climb telephone poles and engage in a lot of walking as a tour guide at a military museum. Thus, Dr. W.A.J. appears to ultimately opine that the Veteran's right knee degeneration was the result of activities during her active duty service. The earliest record in the claims file which pertains to the Veteran's left knee is a September 2012 MRI report which expresses findings of a tear of the posterior horn of the medial meniscus in the left knee, a Grade I chondromalacia patella, minor patellofemoral compartment osteoarthritis, and mild joint effusion. Although the record does not indicate any opinion from a medical profession in regard to the left knee, as noted above, the Veteran has alleged in her claims submissions and hearing testimony that her left knee condition was caused by the her right knee disorder. During an October 2012 VA examination of her knees, the Veteran reported that her right knee problems began in 1982, at which time she was told that she had a cyst in her knee. She stated that she had experienced ongoing right knee pain since that time and that she treated her knee with over the counter medication and application of warm and cold packs. She reported that her right knee became much worse in 2009 after she reportedly twisted her knee and heard a popping sound. Regarding her left knee, she reported that she began experiencing left knee pain in August 2011. An examination of the knees revealed that the Veteran was able to produce full extension in both knees. Right knee flexion was decreased to 120 degrees, with pain beginning at 110 degrees. Left knee flexion was decreased to 115 degrees, with pain beginning at 80 degrees. Ligament testing revealed zero to five millimeters of anterior instability in the right knee and zero to five centimeters of medial/lateral instability in the left knee. The examiner diagnosed degenerative joint disease of both knees, as well as left knee meniscal tear shown in the aforementioned September 2012 MRI. Concerning etiology, the examiner opined that the Veteran's right and left knee conditions were less likely than not incurred during or caused by her active duty service. By way of explanation, the examiner first noted that the Veteran was treated on one occasion during service for a sebaceous cyst over the right lateral knee, which apparently resolved after treatment via antibiotics and anti-inflammatories. In that regard, the examiner noted that the service treatment records indicated no other treatment for right knee complaints, and made no mention whatsoever of the left knee. The examiner acknowledged that the Veteran was reporting ongoing right knee pain which dated back to the 1982 in-service injury, however, noted that the earliest documented knee complaints were in 2003, with consistent knee problems not being shown in the record until 2008. The examiner also pointed out that sebaceous cysts, such as that incurred by the Veteran during service, is a dermatological condition rather than a musculoskeletal condition. In view of this fact, in conjunction with the absence of any documented complaints of continuous knee pain after service until 20 years after her separation from service, the examiner concluded that the evidence did not establish a link between the Veteran's current knee conditions and an injury or illness sustained during active duty service. Overall, the weight of the evidence does not show a relationship between the degenerative conditions in the Veteran's right knee and her active duty service. In that regard, the evidence shows that the Veteran did sustain a sebaceous cyst in her right knee during service, but that this condition shortly resolved prior to her separation from service. The evidence also shows that the Veteran's current right knee degeneration began at some point during the timeframe from April 2008 to July 2009, well after the Veteran was separated from service, and has not been shown as being related to any injury or illness sustained during her service. In support of the foregoing, the Board points out that the service treatment records indicate that the sebaceous cyst in the Veteran's right knee was effectively treated with medications and resolved within a week. Subsequent service records do not indicate any ongoing knee problems or new complaints related to either knee. Post-service treatment records do not indicate any treatment or complaints related to either knee until September 2003, when VA treatment providers identified knee arthralgia as being among the Veteran's treated problems. Nonetheless, the evidence does not provide any information or findings to support such a diagnosis, and indeed, contemporaneous records which include medical histories provided during July 2002 VA examinations and during a December 2002 SSA disability examination do not indicate any ongoing knee-related problems. Furthermore, the Board notes that subsequent right knee x-rays performed in April 2008 were entirely negative for any findings. By contrast, the evidence shows that the Veteran began receiving regular treatment for her right knee in June 2009. Indeed, x-rays taken in July 2009 indicated for the first time positive, albeit mild, findings of tricompartmental degeneration in the Veteran's right knee. In light of this record, the Board is inclined to assign greater probative weight to the VA examiner's negative October 2012 opinion than Dr. W.A.J.'s November 2009 positive opinion. In that regard, the Board points out that the Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). Indeed, the Board may place greater weight on one physician's opinion than another's depending on such factors as the reasoning employed by the physicians and whether or not (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Addressing Dr. W.A.J.'s positive opinion, the Board first notes that the rationale that no radiological studies such as x-rays or MRIs were performed during service, and thus, that the Veteran may have had degeneration in her right knee during active duty service is unpersuasive. In that regard, Dr. W.A.J. overlooks the aforementioned x-rays performed in April 2008, which were entirely negative for abnormalities. Indeed, Dr. W.A.J. does not acknowledge or address the negative April 2008 x-rays in his rationale. As the evidence of record appears to directly contradict Dr. W.A.J.'s conclusions, and in the absence of any discussion of the negative April 2008 x-rays in his rationale, the probative weight of Dr. W.A.J.'s November 2009 opinion is greatly diminished. By contrast, the VA examiner's October 2012 negative opinion is based upon a complete and accurate understanding of the Veteran's medical history, which was gained from a review of the Veteran's claims file, and which is consistent with the Board's own review of the evidence. Further, the examiner's opinion is based upon the medical community's understanding of sebaceous cysts as being a dermatological condition (as opposed to an orthopedic one). Hence, the examiner appears to conclude that there is no known relationship between sebaceous cysts and orthopedic conditions such as the Veteran's right knee degeneration. As the VA examiner's October 2012 opinion reflects an accurate understanding of the Veteran's history and the current state of the medical community's understanding, the Board assigns far greater probative weight to his opinion than Dr. W.A.J.'s November 2009 opinion. The only other evidence in the record concerning the etiology of the Veteran's right knee disorder is the Veteran's lay assertions that she has experienced continuous right knee problems since service, and hence, her current right knee problems must be related to service. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder). In view of the foregoing law, the Veteran is competent to provide probative statements as to when symptoms in her right knee began and how long they have continued. Nonetheless, the Board finds that the credibility of the Veteran's assertions is severely undermined by inconsistencies in the record. In that regard, the Board notes that the Veteran's assertions are contradicted by the absence of any noted right knee complaints in the service treatment records subsequent to her September 1982 treatment for sebaceous cysts. Indeed, post-service treatment records do not indicate regular treatment for right knee problems until June 2009, subsequent to an apparent twisting and popping injury of her knee (as reported during her October 2012 VA examination). Although the Board is mindful that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, the Board may still consider the absence of contemporaneous medical evidence as a relevant factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Mindful of the same, the Board notes that the virtual absence of any evidence of subjective knee complaints related to the knee over the period from the Veteran's separation from service through at least 2003, when considered in conjunction with the absence of radiological findings of right knee degeneration until July 2009, would weigh against the Veteran's credibility. Finally, and perhaps most fatal to the credibility of the Veteran's assertions, the Board notes that the Veteran reported on multiple occasions during her VA treatment in 2009 that her current right knee complaints began in May 2009. These statements are wholly contrary to her other assertions that her right knee problems had been continuous since her active duty service. In view of all of the foregoing inconsistencies, the Board finds that the Veteran's assertions carry grave credibility concerns, and hence, are not entitled to probative weight. As service connection for a right knee disorder is being denied under the foregoing analysis, service connection for the Veteran's claimed left knee disorder cannot be granted on the Veteran's alleged theory that it was caused or aggravated by her right knee disorder. 38 C.F.R. § 3.310. Subject to the foregoing, the Board also finds that the Veteran is not entitled to service connection for a left knee disability on a direct basis. In that regard, the evidence simply does not show that the Veteran's current left knee meniscal tear and degeneration are related in any way to an injury or illness sustained during her active duty service. As rationale for the foregoing, the Board notes that the service treatment records simply do not indicate any reported left knee injuries, nor do they reflect any subjective complaints, objective findings, diagnoses, or treatment of any left knee problems. As previously noted, there is no evidence of any left knee complaints or treatment after service until September 2012, at which time, an MRI revealed the conditions in the Veteran's left knee. By the Veteran's own reported history, as provided during her October 2012 VA examination, she did not experience problems in her left knee until August 2011. Indeed, the only theory of entitlement concerning the left knee that has been raised by the Veteran is her assertion that it was caused or aggravated by her non-service-connected right knee condition. Against this backdrop, the Board notes that the only medical opinion concerning the cause or origin of the Veteran's left knee disorder is the VA examiner's negative and uncontradicted September 2012 opinion which is adequately supported by rationale based upon a full and complete understanding of the Veteran's medical history. Overall, the preponderance of the evidence is against the Veteran's claims of service connection for right and left knee disorders. Accordingly, these claims must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs