Citation Nr: 1336658 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-16 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected status-post fracture of the right tibia and fibula, with open reduction and internal fixation. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected status-post fracture of the right tibia and fibula, with open reduction and internal fixation. 3. Entitlement to service connection for a left hip disability, to include as secondary to service-connected status-post fracture of the right tibia and fibula, with open reduction and internal fixation. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from January 1990 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issues of service connection for a lumbar spine disability and left hip trochanteric bursitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There has been no demonstration by competent medical evidence, or by competent and credible lay evidence, that the Veteran's left knee disability, is related to active duty, or that it was proximately caused or aggravated by a service-connected disability to include as secondary to service-connected status-post fracture of the right tibia and fibula, with open reduction and internal fixation. CONCLUSION OF LAW A left knee disorder was not incurred in or aggravated by active service, and was not incurred or aggravated as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in an October 2007 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records, VA examination reports and the Veteran's own statements. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. In August 2010, the Veteran testified before a Decision Review Officer. In April 2013, the Veteran testified before the undersigned Veterans Law Judge. A transcript of each hearing has been associated with the claims file. The Veteran was afforded VA medical examinations during the appeal, including in September 2010. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September 2010 VA examination and opinion obtained in this case are more than adequate, as they are predicated on a reading of the Veteran's claims file and the results of the current physical examination. The report and opinion consider all of the pertinent evidence of record and the statements of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks service connection for a left knee disability. During each hearing, she contended that she now has this disability as a direct result of being knocked over by a motorcycle during active duty. During her hearing before the undersigned, the Veteran and her representative contended that the treatment the Veteran received after the MVA did not treat or mend all of her injuries. The Veteran has also argued that the left knee disability resulting from the inservice motor vehicle accident (MVA) was exacerbated by her service-connected status-post fractures of the right tibia and fibula. See July 2009 Decision Review Officer Conference Report. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. In such a case, compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c); Allen, supra. 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). 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). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against entitlement to service connection for left knee patellofemoral syndrome. The competent medical evidence fails to show that the Veteran's current left knee disability is related to active duty, or was caused or aggravated by her service-connected status-post fractures of the right tibia and fibula. The Veteran's service treatment records reflect that she was knocked over by a motorcycle in August 1992. The relevant hospital discharge report reflects that she incurred a fracture of the lower shaft of the right tibia, fracture of the lower right fibula, and a fracture of the shaft of the 5th metacarpal of the left hand. The report is negative for any other injuries resulting from the accident. The report of the Veteran's July 1993 separation physical examination, and her July 1993 separation report of medical history, are negative for complaints, symptoms, findings or diagnoses related to the left knee. The Veteran underwent an independent medical evaluation in April 2007 to determine her current functional abilities for purposes of employment as a city mail carrier. The evaluation report recounts the Veteran's active duty MVA, as well as her post-service medical history. The pertinent assessment was early arthritic changes in both knees by history given by the Veteran. The examiner provided that none of the Veteran's current problems were directly caused by her job. They were related to preexisting condition[s] from her injury while in the Navy. The report of the September 2010 VA examination provides a pertinent diagnosis of left knee chondromalacia of the patella, mild. The report sets forth a detailed analysis of the Veteran's relevant active duty and post-service medical history. The examiner noted that he made his opinion after reviewing the medical records, including the April 2007 private evaluation report. He observed that the Veteran was not treated for a left knee condition while on active duty. The Veteran currently had very mild patellofemoral syndrome. The examiner stated that it was very unlikely that her right tibia fracture or any residual gait abnormality subsequent to that tibia fracture "would result in" her mild patellofemoral syndrome. Therefore, it was less likely than not that her left knee patellofemoral syndrome was related to her prior trauma or service-connected disability for her right tibia. The Board is aware that the Court of Appeals for Veterans Claims (Court) has held that a medical opinion that a claimed disability is not related to a service-connected disability does not address the question of aggravation. See Allen, supra. Nevertheless, when the September 2010 examination report is viewed as a whole it is clear that the examiner's negative opinion with respect to secondary service connection encompasses aggravation as well. The report is completely negative for any symptoms, findings or diagnoses of an altered gait. In fact, the report specifies that the Veteran's gait was "non-antalgic". Significantly, the examiner stated that it was "very unlikely" that the Veteran's service-connected fractures "would result in" her left knee mild patellofemoral syndrome and that the patellofemoral syndrome was not "related to" her service connected disability of the right tibia. In light of the finding of a non-antalgic gait, and the use of this broad language, the Board finds that the doctor's opinion rules out aggravation as well as causation. The Board also observes that the record is entirely negative for any competent medical evidence that the Veteran's service-connected fractures aggravated a left knee disability. The record is also negative for any evidence establishing a baseline level of severity of a left knee condition prior to the onset of the claimed aggravation by the service-connected fractures. Thus, the Board finds that the September 2010 VA medical opinion constitutes probative evidence against the Veteran's claim. This medical opinion also outweighs the April 2007 private medical opinion. The September 2010 medical opinion is based on a review of the medical record, including the April 2007 opinion. The September 2010 medical opinion is supported by references to the Veteran's service treatment records, current physical findings and the examiner's own medical expertise. By contrast, the April 2007 private medical opinion includes no rationale or explanation. It is a bare assertion with no reference to the Veteran's service treatment records, current findings or medical principles. This distinction is particularly important, in the Board's judgment, as the references in the September 2010 medical opinion make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board acknowledges the Veteran's own assertions in support of her claim. She is competent to testify as to her observable symptoms during and after active duty. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the contentions that the Veteran directly incurred a left knee disability during active duty, or that her service-connected status-post fracture of right tibia and fibula, with open reduction and internal fixation, proximately caused or aggravated her left knee disability, do not constitute medical evidence in support of her claim. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran's left knee disability is related to active duty, and whether her service-connected fractures of the right tibia and fibula proximately caused or aggravated her left knee disability) fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of her claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, supra. Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, supra. The Veteran is competent to state that she observed the claimed left knee symptoms during or after service. However, the Veteran is not competent to attribute the coincidence of symptoms occurring during or after service, or before or after the development of the service-connected fractures of the right tibia and fibula, as establishing the diagnosis and etiology of her current left knee disability. As such, the Board finds that the Veteran's assertions are outweighed by the VA medical opinion addressed above. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for left knee patellofemoral syndrome, claimed as left knee disability, to include as secondary to service-connected status-post fracture of right tibia and fibula, with open reduction and internal fixation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection a left knee disability, to include as secondary to service-connected status-post fracture of right tibia and fibula, with open reduction and internal fixation, is denied. REMAND A preliminary review of the record indicates that the issues of service connection for a lumbar spine disability and left hip trochanteric bursitis require additional development. The September 2010 VA examination report fails to address whether the Veteran's left hip trochanteric bursitis was related to her active duty MVA. The report also fails to address whether the Veteran's mild lumbar strain was related to her active duty MVA. In addition, the report notes that the Veteran was treated once in service for lumbar strain, but did not address whether her current mild lumbar strain was related to the active duty lumbar strain. As a result, the Board finds that the foregoing VA September 2010 examination report and opinions are inadequate, and additional development to obtain clarifying medical opinions is required. The Court has held that once the Secretary of VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr, supra (noting that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"); see also 38 C.F.R. § 4.2 (2013) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the examiner who conducted the September 2010 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. The examiner is requested to review the claims folder in order to fully address: (1) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's left hip trochanteric bursitis is related to the Veteran's active duty MVA; (2) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's mild lumbar strain is related to the Veteran's active duty MVA; and (3) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's current mild lumbar strain is related to the lumbar strain noted in her service treatment records. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinions. 2. Then, readjudicate the Veteran's claim. If either benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs