Citation Nr: 1337653 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-07 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a low back disability claimed as secondary to a knee disability. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Hancock, Charles INTRODUCTION The Veteran served on active duty from August 1973 to February 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The August 2007 rating decision determined that new and material evidence had not been submitted to reopen claims seeking service connection for degenerative changes of the knees and for a low back disability secondary to a bilateral knee disability. The claims are now under the jurisdiction of the RO located in Wichita, Kansas. The Veteran testified at a video conference hearing before a Veterans Law Judge in February 2009. A transcript is of record and has been reviewed. In a February 2012 letter, the Veteran was informed that the Veterans Law Judge who had conducted his February 2009 video conference hearing was no longer employed by the Board, and that therefore he had the right to an additional hearing before a different Veterans Law Judge. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. He responded later in February 2012, advising the Board that he did not wish to appear at another hearing. Historically, the Board denied the Veteran's claims of entitlement to service connection for bilateral knee and low back disabilities in October 2005. The Board later, in September 2009, found that new and material evidence had not been submitted to reopen the claims. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 Memorandum Decision, the Court reversed and remanded the Board's September 2009 decision. In August 2012, the Board, in finding that new and material evidence had been received, reopened the service connection claims for a bilateral knee disability and for a low back disability claimed as secondary to a bilateral knee disability. The claims were remanded so that additional development of the evidence could be undertaken; specifically, so that the Veteran could be afforded a VA examination. This examination took place in March 2013. As discussed below, the Board finds that there was substantial compliance with its April 2012 remand instructions and it will now therefore proceed with a determination as to these issues at this time. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The objective and credible evidence of record preponderates against a finding that the Veteran has a bilateral knee disability that had its onset during military service or is otherwise due to service, and arthritis of the knees did not have its onset in active service or manifest to a compensable degree within one year after the Veteran's discharge from active service. 2. The Veteran does not have a low back disability that is casually or etiologically related to his military service, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a bilateral knee disability are not met as the disorder was not incurred in or aggravated by active duty; nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2013). 2. A low back disability was not incurred or aggravated during active military service, arthritis may not be presumed to have been incurred therein, and such a disability is not shown to be proximately due to or aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159. 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties To Notify And Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 initially provided in October and November 2002 letters. Additional notice was provided, to include in May 2007. Statements of the Case (SOCs) issued in August 2004 and January 2008 and subsequently-dated Supplemental SOC's - most-recently dated in June 2013 also provided pertinent regulations, including those concerning direct and secondary service connection. Although some of this notice postdated the initial adjudication, no prejudice resulted as the claims were subsequently readjudicated. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as a SOC or SSOC, is sufficient to cure a timing defect). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. There is no evidence of any failure on the part of VA to further comply that reasonably affects the outcome of this case. Finally, the duty to assist the appellant has been satisfied in this case. The Veteran's service treatment records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claims. The appellant has not informed VA of any outstanding existing post service medical records which may be helpful in the adjudication of his claims. VA is not on notice of any evidence needed to decide the claims which has not been obtained. VA examinations were obtained with regard to the claims for service connection for disorders affecting the bilateral knees and the low back. 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 March 2013 VA knees and thoracolumbar spine examination/findings obtained in this case are adequate, as they were predicated on a reading of the claims folder. They also considered all of the pertinent evidence of record, to include the Veteran's service treatment records and considered the Veteran's history and the records reviewed. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claims. Laws and Regulations Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr. Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the Veteran here is seeking service connection for disorders of the knees and low back, and while both degenerative joint disease of the knees and low back is currently shown (see March 2013 VA examination report), he is neither contending, nor does the evidence show, that either was manifested within one year of his discharge from service in 1987. Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In 2006, VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. See 71 Fed. Reg. 52,744 (September 7, 2006). The amended text states that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Factual Background Review of the Veteran's service treatment records shows that at the time of his August 1973 enlistment examination the medical history report did not include any mention of knee or back disorders, and his lower extremities and spine were clinically evaluated as normal. The Veteran weighed 205 pounds. The Veteran complained of injuring his left knee in May 1974 following a night of dancing. Range of motion was reported to be good, but the Veteran reported having a constant dull aching pain. The Veteran was provided an Ace bandage, moist heat and Tylenol. No knee disability was diagnosed. There were no back or knee complaints on his July 1975 medical history report, and his spine and lower extremities were normal on physical examination at that time. In July 1975, the Veteran weighed 215 pounds. He complained of left knee pain after an automobile accident in November 1975, and the assessment was left knee strain. There were, however, no pertinent complaints or findings on VA medical history and medical examination reports dated in January 1978. He weighed 227 pounds in January 1978. It was noted at this time he was overweight, and he was placed on a weight reduction program. Although the Veteran's complaints in February 1981 included backache, there was no diagnosis of a back disorder. The report of a February 1983 reenlistment examination shows that the Veteran weighed 183.5 pounds. His lower extremities and spine were clinically evaluated as normal. The Veteran's December 1986 separation medical history report did not include any back or knee disorder, and his spine and lower extremities were normal on separation medical examination in December 1986. In December 1986 the Veteran weighed 255 pounds. He was at that time determined to be grossly obese. There were no complaints of either back or knee disability reported as part of a VA examination conducted in October 1989, at which time the Veteran complained only of a right elbow disability. The Veteran weighed 255 pounds. The initial post-service medical evidence of either knee or low back disability was not until November 2001, which is almost 15 years after the Veteran's service separation, when bilateral knee pain was noted. He was also found to be morbidly obese. See VA general/primary care note. Arthritis of the right knee (mild degenerative changes) was also found until November 2001. Another VA general/primary care note, dated in May 2002, shows that that tendonitis of the knees had been diagnosed a few years earlier. A September 2002 VA general/primary care note shows complaints of low back pain for one month. He also complained of bilateral knee pain. Lower backache was diagnosed; the examiner commented that this could be due to degenerative joint disease most likely caused by the Veteran's obesity. VA X-ray findings from September 2002 show anterior spurring at L4. A February 2003 VA history and physical outpatient note shows a past medical history of chronic lumbar spine and knee pain. The Veteran reported low back and left knee pain, occurring during his military service, in the course of an April 2003 VA general medical examination. The supplied diagnoses included chronic low back pain. The Veteran at that time weighed 330 pounds. The Veteran provided testimony before a Veterans Law Judge in February 2009. In the course of the videoconference hearing the Veteran testified that it was his belief that his back and knee conditions were related to his service. He added that he sought medical attention for his claimed disorders "just a couple of years" after he separated from the military. See page six of hearing transcript (transcript). The Veteran also testified that he had been seeing a doctor for his disorders for "probably about 12 to 13 years," and that this period of time could have "been longer." See page seven of transcript. Also of record is a May 2012 medical opinion from a private physician, Dr. G.K. Dr. G.K. opined that it was more likely than not that the Veteran's current knee disease was related to or caused by his military service. He did not supply an opinion regarding the etiology of the Veteran's claimed low back disability. The physician also commented that the Veteran weighed 199 pounds at the time of his service entry, and that during his military service he developed "gross obesity." The physician observed that in May 1974 the Veteran was seen for an acute knee injury, and also, "in addition," had developed and suffered from a constant dull ache in the knees. The physician summarized by stating that the Veteran developed obesity while in the military and also at that time developed "chronic" aching in his knees. Bilateral knee arthritis was noted to have been diagnosed following his service separation. The physician opined that the Veteran's obesity and knee arthritis were "linked by a shared biochemistry," and that the link was not "mechanical" in nature, as had previously been suspected. He concluded by stating that it was at least as likely as not that the Veteran's knee arthritis had its onset during, and was related to, his active military service. The report of a March 2013 VA examination report shows that following examination of the Veteran diagnoses of bilateral knee strains and bilateral knee degenerative joint disease. The strains were noted to have been incurred in 1974 and 1975, and the degenerative joint disease was noted to have been diagnosed in March 2013. The Veteran reported a history of bilateral knee pain, left worse than right, after carrying heavy sacks of mail while aboard a ship in the military. He added he was treated at that time. He also mentioned that he incurred a left knee fracture in February 2012; the Veteran mentioned that he also hurt his right knee and back at this time. The VA examiner opined that the Veteran's bilateral knee disorders were less likely than not incurred in or caused by his military service. As rationale for this supplied opinion, the examiner observed that the Veteran's service treatment records show that he was seen in May 1974 and on November 1975 for knee strain. She added that there was no further documentation of knee treatment in service, to include a showing of such a disorder on the Veteran's separation medical examination. It was also observed that knee symptoms postservice were first manifested some 14 years later, in 2001, when right knee mild degenerative disease was shown. The examiner commented that, to this, the service treatment records were silent as to any right knee-related complaints or findings. She also observed that the next X-ray findings were in 2004 at which time only mild degenerative changes were noted. The examiner commented that while the Veteran's claims folder suggests that his bilateral knee degenerative joint disease was caused by obesity, the examiner commented that if this was the case there should have been changes greater than mild degenerative joint disease manifested by 2004. She added that these changes should have additionally affected all of his weight bearing joints, but that there was not a showing of complaints of pain associated with the hips, ankles, or feet of record. Analysis Bilateral Knee Disability After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for a bilateral knee disability. As mentioned, the service treatment records show that the Veteran was treated on two occasions while in the military for his left knee. In 1974 he noted he injured his knee while dancing the night before. Examination showed that while range of motion of the knee was good, he did report experiencing a constant dull aching pain which started the previous night. A left knee disorder was not then diagnosed. He also complained of left knee pain in 1975 which followed his involvement in an automobile accident. Left knee strain was diagnosed. On the question of whether the Veteran's currently-manifested bilateral knee disorder, strains and degenerative joint disease (see VA examination report, dated in March 2013), are medically related to his military service, the Board notes that the record includes conflicting opinions. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this instance, for reasons to be discussed below, the Board finds the opinion from the VA examiner in March 2013 to be most probative in discussing this claim. The March 2013 VA examiner declined to find a nexus between the Veteran's currently-manifested knee disorders and service, noting that while he was seen on two occasions in service (lastly in 1975), no knee-related problems were observed to be present (or complained of) at the Veteran's 1987 separation examination. The examiner further pointed out that following his 1987 separation, knee-related problems were not documented until 2001; a period of 14 years. Also, the VA examiner found that the Veteran's bilateral degenerative joint disease of the knees was not related to his obesity, for the stated reason that if this was the case degenerative changes of the knees would have been more severe than mild when first documented postservice. She also mentioned that such changes should have affected all of his weight bearing joints, such as his hips, ankles, and feet, and that this was simply not shown. As this opinion was based on examination of the Veteran and consideration of his documented medical history and assertions, and supported by stated rationale, the Board accepts this opinion as probative of the medical nexus question. By contrast, the May 2012 opinion supplied by the private physician, Dr. G.K., opined that it was more likely than not that the Veteran's bilateral knee disorders were in fact caused by in-service findings of pain and his obesity, which were both noted to be present during the Veteran's military service. However, in part, this opinion appears to be based on an inaccurate factual premise, namely that the Veteran during his military service "developed chronic aching in his knees." This assertion is, as noted above, not supported by a review of the Veteran's service treatment records. While it is also clear that the Veteran was found during his active military service to be obese, to include at the time of his 1987 separation, Dr. G.K. failed to mention that in February 1983 the Veteran weighed 183.5 pounds. The Board points out that a medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two-" a medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Court, in Nieves-Rodriguez, discussed, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims folder. The Court held that claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for medical opinions. The Court added, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The May 2012 private opinion is therefore not being afforded probative weight equal to the March 2013 VA opinion. As for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's bilateral knee disorders and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. Hence, the lay assertions of medical nexus have no probative value. For all the foregoing reasons, the claim for service connection for a bilateral knee disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Low Back Disability After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for a low back disability, here claimed as being secondary to a knee disability. While the service treatment records do include one notation of back-related complaints ("backache" in February 1981), no other treatment records, or examination reports (to include the Veteran's 1987 separation examination) include mention of either back-related complaints or diagnoses. Also, as above noted, the VA examiner in March 2013 supplied an opinion, which was accompanied by detailed rationale, that the Veteran did not have a low back disorder as a result of his active military service. An opinion to the contrary is not of record. Thus, though the Veteran throughout this appeal has essentially limited his argument concerning this claim to only include consideration of entitlement to service connection on a secondary basis, upon these facts found, service connection on a direct basis is not warranted. In considering the claim, the Board acknowledges the lay statements that the Veteran has a history of back complaints and clinical findings dating since 2002. The Veteran is competent to pain associated with his back. Notwithstanding, there is no indication he is a physician or is otherwise competent to render an etiology opinion on a complex medical question. To the extent he is attempting to provide a medical nexus opinion, the Board does not find it probative. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). As noted, in reviewing the file, it appears the Veteran's essential contention is that he developed low back problems as a result of his bilateral knee disorders. As discussed above, entitlement to service connection a bilateral knee disability is not warranted. For the reasons explained above, the Veteran is not service-connected for a bilateral knee disability. Therefore, entitlement to service connection for a low back disability as secondary to a bilateral knee disability must also be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a low back disability, to include as secondary to a bilateral knee disability, is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs