Citation Nr: 1336388 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 06-37 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a left knee disability. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from May 1989 to September 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The matters were previously before the Board in October 2010 and December 2012 and were remanded to the agency of original jurisdiction (AOJ) for additional development. As the Board has remanded the Veteran's claims, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). Since the December 2012 Board remand, the RO granted the Veteran's claim for service connection for chronic adjustment disorder with mixed emotions, formerly claimed as an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), in a June 2013 rating decision. The Veteran has not disagreed with the assigned disability ratings or the effective dates. Therefore, the matter of service connection for PTSD has been resolved and is not in appellate status. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, headaches had its onset in service. 2. The preponderance of the evidence shows that the Veteran's left knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C.A. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this decision, the Board grants service connection for headaches. As this represents a complete grant of the benefit sought on appeal with regard to that issue, no discussion of VA's duty to notify and assist is necessary with regard to the headaches claim. With regard to the left knee claim, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of a number of letters dated since before the current claim on appeal, and most recently in December 2006. These documents provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific criteria to substantiate his claim for service connection. The RO has provided adequate notice of how effective dates are assigned. The claim was subsequently readjudicated most recently in a June 2013 supplemental statement of the case (SSOC). To the extent the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim. The claimant also was provided the opportunity to present pertinent evidence. The record contains service treatment records, records of medical treatment received from VA, and the report of June 2013 VA examination addressing the material elements of the left knee claim. The June 2013 examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation is an informed determination. For these reasons, the Board finds that the VA opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted above, this case was previously before the Board in December 2012. In the December 2012 remand, the Board directed that the RO/AMC notify the Veteran that he may submit lay evidence of any continuity of symptoms, and schedule the Veteran for a VA examination. As the Veteran was notified that he may submit lay evidence of any continuity of symptoms in January 2013, and as the Veteran underwent a VA examination in June 2013, the directive of the December 2012 remand has thus been accomplished. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Service Connection Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. §3.303(d). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "(w)hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Factual Background & Analysis Headaches Service treatment records document treatment and complaints of headaches in May 1989. In the November 2006 substantive appeal, the Veteran reported that his headaches had been present during service and continuously since that time. The Veteran's reported history is credible. The Veteran underwent a VA examination in June 2013. The June 2013 VA examiner diagnosed headache, status post sinusitis. After a careful review of the claims folder, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's headaches had its onset service. The Board finds that the Veteran currently has headaches, and there competent and credible evidence to support the conclusion that the headaches were incurred during service. Given the foregoing, and resolving all doubt in favor of the Veteran, as is required, the Board finds that service connection for headaches is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Knee Service treatment records starting in July 1989 reflect that the Veteran complained of bilateral knee pain and was provisionally diagnosed with a Baker's cyst. In September 1989, the Baker's cyst was noted to be asymptomatic. Later in September 1989, the Veteran declined a separation medical examination. The Veteran underwent a VA examination in November 2007. He reported that a left knee condition existed for the past several years. He denied that the condition occurred as a result of any specific injury or trauma. Following physical examination, the examiner diagnosed a chronic left knee strain. The Veteran underwent another VA examination in February 2012. He reported that he started having left knee pain after basic training and was diagnosed with a Baker's cyst. He stated that his knee locked up on him several times a year. Following physical examination, the examiner diagnosed a left knee Baker's cyst. The examiner opined that the left knee disability is less likely as not caused by or a result of his military service. The examiner noted that the Veteran was seen for a possible Baker's cyst of the left knee in service. The examiner stated that Baker's cysts do not cause the problems the Veteran is claiming to have. The examiner stated that, although the Veteran was seen for a possible Baker's cyst on four occasions in service, on his last visit he was diagnosed with possible Baker's cyst, asymptomatic. The examiner stated that the Veteran has not been seen for a Baker's cyst since that time, and there is no evidence of chronicity for left knee condition in the service treatment records and there is no continuity of care for left knee condition in the years proximal to military service. In a January 2013 statement, K.S. stated that he has known the Veteran for a long time and the Veteran constantly complains about chronic knee pain. The Veteran underwent another VA examination in June 2013. He reported that he was told that he had a Baker's cyst in August 1989 and that it would go away, and that he was seen by a specialist and received an injection. He reported that his leg started swelling up again around 1998 or 1999, and that he started having polyps in his left leg in 2002 and 2003. He stated that he continues to have pain, swelling, locking and popping of his left knee. Following physical examination, the examiner found that the left knee was within normal limits. The examiner opined that it is less likely than not that the Veteran's claimed condition of a left knee disorder is related to or had an onset during service. The examiner noted that the Veteran was seen on more than one occasion during his active military service for a possible Baker's cyst on back of his left knee. The examiner stated that the service treatment records are silent on any diagnostic work up or definitive diagnosis of a left knee Baker's cyst. The examiner noted that, after discharge from military service in 1989, there is no documentation of any knee injuries, complaints or problems until reported on VA examination in 2007, when the Veteran was diagnosed with a chronic left knee strain and it was noted that no Baker's cyst was found. The examiner stated that there was no statement or correlation of active military service injury and Baker's cyst with the cause of the Veteran's left chronic knee strain. The examiner noted that Baker's cysts do not cause stiffness and locking of the knee. Further, the examiner stated that there was no documentation to support that the Veteran was evaluated, diagnosed or worked up for a left knee strain or condition in the service treatment records or VA treatment records from 1989 until 2007, which was 18 years from discharge. The examiner noted that there was no documentation of the Veteran being evaluated for a left knee condition in the previous 5 years. Further, the examiner stated the June 2013 VA examination and diagnostic X-rays were within normal limits and did not yield any abnormal findings of the left knee. The Board finds that service connection for a left knee disability is not warranted. At the outset, the left knee disability may not be presumed to have been incurred in service as left knee arthritis did not manifest to a compensable degree within one year of separation from service. See 38 C.F.R. § 3.307, 3.309. For example, in September 1989, the Baker's cyst was noted to be asymptomatic, and the Veteran was not diagnosed with a left knee disability until 2007. Service treatment records reflect left knee complaints in service. However, there is no evidence of a current left knee disability that has been related to service by way of competent medical evidence or a credible report of a continuity of symptoms. Indeed, the June 2013 VA examiner opined that it is less likely than not that a left knee disability is related to service, and there is no contrary medical opinion. As it relates to ongoing symptoms, the Veteran has not reported a recurrence of left knee symptoms after service. Rather, in November 2007, he denied that the condition occurred as a result of any specific injury or trauma. Moreover, in June 2013, he reported that his leg started swelling up again around 1998 or 1999, and that he started having polyps in his left leg in 2002 and 2003. Additionally, although L.S. stated in January 2013 that the Veteran has complained of knee pain for a long time, L.S. has not indicated that these complaints have been continuous since service. Further, his lay report linking his left knee disability to service is outweighed by the medical opinion provided by the June 2013 VA examiner who reviewed the medical records, performed a clinical examination, and provided a cogent rationale in support of his assessment based on expertise acquired through education, training and experience. Cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In summary, there is no evidence of arthritis of the left knee shown during the year following discharge from service, and the most probative evidence of record indicates the Veteran's current left knee disability is not related to service, to include the left knee complaints noted therein. Thus, the preponderance of the evidence is against a finding of service connection for a left knee disability. ORDER Service connection for headaches is granted. Service connection for a left knee disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs