Citation Nr: 1336375 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-15 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for left knee disability, to include as secondary to service-connected right knee arthritis. 2. Entitlement to service connection for back disability. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1974, including service in the Republic of Vietnam from August 1969 to September 1970. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2012, the Board remanded the claims to the RO, via the Appeals Management Center (AMC) for additional development. For the reasons stated below, the RO/AMC complied with the Board's remand instructions with regard to the claim being decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not include medical records and contain procedural documents duplicative of those in the paper claims file. The issue of entitlement to service connection for back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Left knee disability is not caused or aggravated by service connected right knee arthritis. 2. Left knee disability did not manifest in service, arthritis did not manifest within the one year presumptive period or for many years thereafter, and current left knee disability is unrelated to service. CONCLUSIONS OF LAW 1. Left knee disability is not proximately due to, the result of, or aggravated by service connected disease or injury. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2013). 2. Left knee disability was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a February 2008 pre rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for left knee disability, to include on a secondary basis. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the February 2008 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his 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 case, VA obtained the Veteran's service treatment records (STRs) and all of the identified, available post-service private and VA treatment records. In its September 2012 remand, the Board noted that the STRs did not contain records prior to 1970 and instructed that the RO/AMC obtain these records. The RO/AMC obtained STRs dated prior to 1970 and thus complied with its duty to assist and the Board's remand instructions in this regard. The Social Security Administration notified VA that no records were available. The Board also instructed that the Veteran be informed that he could submit lay statements of individuals relating to his back and left knee, and that he be asked to provide the names and addresses of all medical care providers who treated him for his claimed disabilities since October 2010. The AMC sent a December 2012 letter with the required information and obtained records from Mercy Medical Associates as identified and authorized by the Veteran. The RO/AMC thus complied with its duty to assist and the Board's remand instructions in this regard as well. The Board also notes that the Veteran indicated in his March 2009 notice of disagreement that he was treated at the Cincinnati VA Medical Center (VAMC) in 1974. The RO requested these records and was informed by the VAMC that there were no records available. The RO was not required to take further action to obtain these records as further efforts to obtain them would have been futile. 38 C.F.R. § 3.159(c)(2) (requiring VA to continue to request Federal records unless it concludes that records sought do not exist or that further efforts to obtain them would be futile). The RO did not provide notice to the Veteran of its inability to obtain these records in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e)(1). Any error in this regard error was, however, rendered harmless by the AMC's subsequent December 2012 letter, which generally explained what it would do to obtain outstanding records and the respective responsibilities of the Veteran and VA in this regard. The Board also instructed that the Veteran be afforded a new VA examination as to the etiology of his left knee disability. Such an examination was conducted in April 2013. For the reasons stated below, the examination was adequate with regard to the left knee, notwithstanding the fact that the examiner did not review the newly obtained STRs. As discussed in more detail below, although this lack of review rendered the examination inadequate with regard to the back, it did not do so with regard to the left knee, because of the absence of treatment records relating to the left knee in these records. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for left knee disability is thus ready to be considered on the merits. Analysis As discussed below, service connection is warranted where 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), and where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran's primary contention with regard to the left knee is that his current disability is related to his service-connected right knee arthritis. In his March 2009 notice of disagreement and April 2010 substantive appeal, the Veteran indicated that, although he claimed entitlement to service connection for bilateral knee disability, as his right knee worsened he relied more on his left knee which caused it to deteriorate. He requested that his claim be reconsidered based on this theory. The April 2013 VA examination diagnosed left knee arthritis. Additionally, the Veteran's right knee arthritis is service-connected. Thus, the Veteran has met the first two prongs required for secondary service connection. The dispositive in this appeal is thus whether the left knee disability is caused or aggravated by the right knee arthritis. At a November 2008 VA examination, the diagnosis was right knee arthritis that the examiner related to a December 1972 right knee injury in a fall from a truck. The examiner noted that degenerative changes of a joint can occur as a result of a trauma. The examiner also noted an in-service December 1972 right knee X-ray showing joint effusion, subsequent complaints of pain with patellar swelling, tenderness on palpation, and giving out. The April 2013 VA examiner specifically addressed the relationship between the right and left knees. He noted the Veteran's description of his in-service 1972 right knee injury, and his statement that he had favored his right knee for 45 years and this wore out his left knee. After reviewing the claims file and examining the Veteran, the examiner found a slight antalgic gait favoring the right knee. He also recounted the STRs indicating right knee pain and weakness following a fall, the X-ray showing joint effusion, and the December 1973 separation report of medical history indicating that the Veteran had a trick knee that had been swollen and painful two years previously. He noted the November 2008 VA examination and the history that the Veteran gave of his 1968 and 1972 falls causing injury. He noted the Veteran's contentions, the procedural history of the case, and post service right knee treatment notes showing prescription of medication for joint pain. After summarizing the evidence, the examiner opined that there was nothing in the evidence or examination to support that the left knee disability was caused or aggravated by service or service connected right knee disability, "including any alteration in his gait produced by the disability." His rationale was that "[t]here is no evidence based medicine that supports a mechanism by which one joint becomes damaged by overcompensation for the contralateral joint condition." He also noted that arthritis is a common condition that occurs with aging, is not a migratory disease, and that recent X-rays reflected that the condition of the right and left knees were similar. The April 2013 VA examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record. Moreover, he specifically addressed the theory that the left knee disability was due to the altered gait caused by the right knee disability, as well as both causation and aggravation. His opinion therefore complied with the Board's remand instructions, was adequate, and is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although, as discussed in the remand section below, the examiner was not aware of the newly obtained STRs from the period prior to 1970, this lack of knowledge was harmless because there were no references to the left knee in these records and no contention by the Veteran that he experienced any left knee symptoms at this time. As there is no medical opinion in the evidence of record contrary to that of the April 2013 VA examiner, the medical evidence weighs against the claim on a secondary basis. The Board must also address the relevant lay evidence. The Veteran's testimony that he has altered his gait since service due to right knee pain is competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (providing that lay witnesses are competent to testify as to observations); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Regarding whether the altered gait due to right knee arthritis either caused or aggravated a left knee disability, the Board finds that the lay statements are not competent. This is because lay witnesses are competent to opine as to some matters of diagnosis and etiology, but the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony indicating that his right knee arthritis caused his current left knee disability relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 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); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). To the extent that the Veteran is competent to testify on this question, the Board finds the specific, reasoned opinion of the April 2013 VA examiner, which specifically addressed the altered gait theory, to be of greater probative weight than the Veteran's more general lay assertions. The evidence thus weighs against service connection for left knee disability secondary to right knee arthritis. Although the Veteran's primary argument was that his current left knee disability secondary to his right knee arthritis, the Board will also address entitlement to service connection for this disability on a direct and presumptive basis. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (noting that in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (stating that the Board must review all issues reasonably raised from a liberal reading of all documents in the record). Establishing direct 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 current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran has been diagnosed with left knee arthritis, the Board will consider whether 38 C.F.R. § 3.303(b) is for application in this case. Moreover, as arthritis is a chronic disease and the Veteran had 90 days or more of active service during a war period, this disease is presumed to have been incurred in service if it manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). There are however, no notations regarding the left knee in service. This is therefore not a situation where chronic disease was noted in service but chronicity is not adequately supported. Entitlement to service connection is therefore not warranted under the chronicity or continuity provisions of 38 C.F.R. § 3.303(b). The Board also notes that the Veteran did not indicate that he experienced continuity of left knee symptomatology and the notation on the December 1973 report of medical history indicating right knee, but not left knee, symptoms also reflects a lack of continuity of symptomatology. The fact that right knee symptoms were recorded reflects that, had left knee symptoms existed, they would have been noted as well. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded). See also AZ v. Shinseki, __ F.3d. __, Nos. 2012-7046, 2012-7048, (Fed. Cir. Sept. 30, 2013) (citing Fed. R. Evid. 803(7) and Buczynski for the proposition that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). Continuity of symptomatology has therefore not been shown. In addition, there is no evidence or argument that left knee arthritis manifested within the one year presumptive period or for many years thereafter. The evidence thus weighs against entitlement to service connection for left knee arthritis on a presumptive basis. Finally, the only evidence as to a nexus between the current left knee disability and service is the negative nexus opinion of the April 2013 VA examiner, which, as noted, is probative because the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence. See Nieves-Rodriguez, 22 Vet. App. at 304. There is also no lay evidence as to such a nexus. The evidence therefore weighs against entitlement to direct service connection for left knee disability. The preponderance of the evidence is against the claim for entitlement to service connection for left knee disability on any basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287. ORDER Entitlement to service connection for left knee disability, to include as secondary to service connected right knee arthritis, is denied. REMAND The Veteran contends that he has a current back disability due to a fall from a guard tower in Korea in the winter of 1966-1967, which was exacerbated by a motor vehicle accident in June 1970. As indicated by the Board in its September 2012 remand, the Veteran's statements are credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (noting that each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). As noted above, at the time of the Board's remand, there were no STRs dated prior to 1970. The Board therefore found the November 2008 VA opinion as to etiology of the Veteran's back disability to be inadequate, because it focused on the post 1970 STRs, including treatment for low back pain following a truck wreck in June 1970; March 1972 X-ray showing spina bifida occults of S1 and schmorl nodes affecting all lumbar vertebral bodies; and March 1972 treatment for low back pain and dysuria and diagnosis of acute prostatitis; and implied that the fall from the guard tower was not substantiated by the record. The Board specifically instructed that the examiner assume the credibility of the Veteran's lay statements indicating that he fell from the tower. With regard to the Veteran's statement that he fell to the ground and the force of the fall broke the stock of his wooden rifle, the April 2013 VA examiner found that there was nothing in the STRs to support this contention and such a fall would have resulted in severe injury, which the examiner implied would have been recorded. The examiner wrote, "The Veteran appears to be conscientious in reporting his health by evidence of record but there are no entries found in his [STRs] regarding reexamination of his back after returning to full duty after the contended fall. As such, the Veteran's statements do not appear credible." This statement rendered the examination inadequate for two reasons. First, the Board has found the Veteran's statements to be credible even in the absence of STRs, and instructed the examiner to assume that the statements were credible. The examiner instead found precisely the opposite. Even more significantly, however, the STRs were in fact located and associated with the claims file (although apparently were not in the file at the time of the April 2013 VA examination), and they fully support the Veteran's statements, thus vindicating the Board's credibility finding. These STRs reflect that in January 1967 the Veteran fell about 15 to 20 feet from a guard tower. At that time, he complained of soreness in the left forearm and thighs, but subsequent treatment notes from June 1967 show complaints of back soreness, stiffness, symptoms of tenderness, muscle spasm, and positive straight leg raise, and a diagnosis of low back strain. A June 1967 physical profile record shows a diagnosis of back strain with limitations of no crawling, stooping, running, jumping, prolonged standing or marching and no strenuous physical activity. An August 1967 treatment note indicated that the Veteran began having low back pain wile chopping with a hoe. Examination showed no objective spasm of muscles, pain with straight leg raising, and the impression was muscle strain of the lumbosacral area. The examiner found that the current back disability was not likely caused or aggravated by service because there is no evidence of record to support such a contention. As there is, however, both lay and medical evidence supporting the Veteran's contentions, a new opinion must be obtained that is based on an accurate factual premise, i.e., that all of the Veteran's statements as to his in-service injury, symptoms, and diagnoses, are credible and supported by the evidence of record. Accordingly, the claim for entitlement to service connection for back disability is REMANDED for the following action: Request an addendum opinion from the April 2013 VA examiner. If he is not available, the opinion should be sought from another physician. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's current back disability is related to service. It is essential that, in answering this question, the physician take all of the Veteran's statements as to his in-service back injuries and symptoms as credible and accurate. A complete rationale should accompany any opinion provided. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs