Citation Nr: 1337824 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-15 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for chondromalacia manifested by pain in the hands and leg, to include a left knee disability. 2. Entitlement to service connection for a left ankle disability, to include as secondary to a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1979 to December 1985. These matters originally came before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Department of Veterans Affairs (VA) regional office in St. Paul, Minnesota (RO). In February 2011, the Board reopened a claim for service connection for chondromalacia manifested by pain in the hands and leg, to include a left knee disability, and remanded both the reopened claim and the claim for service connection for a left ankle disability, to include as secondary to a left knee disability, back to the RO for nexus opinions on whether the disabilities at issue are causally related to service. Appropriate VA evaluations, with nexus opinions, were obtained in November 2011. Consequently, there has been substantial compliance with the February 2011 Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2010, and a transcript of the hearing is of record. FINDINGS OF FACT 1. The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has chondromalacia manifested by pain in the hands and leg, to include a left knee disability, that is causally related to active service. 2. The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a left ankle disability that is causally related to active service or to a service-connected disorder. CONCLUSIONS OF LAW 1. Chondromalacia manifested by pain in the hands and leg, to include a left knee disability, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). 2. A left ankle disability was not incurred in or aggravated by active military service, nor proximately due to or chronically aggravated by a service-connected disorder. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in October 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection for the disabilities at issue. In accordance with the requirements of VCAA, the October 2008 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Although the Veteran was not provided a letter that specifically apprised him of the criteria for the assignment of a disability rating and an effective date, in the event of award of any benefit sought, per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), he has not been prejudiced by this notice defect. As the claims are being denied, the assignment of disability ratings and effective dates is rendered moot. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Relevant VA evaluations, with nexus opinions, were conducted in November 2011. 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 VA opinions obtained in this case are adequate, as they involve review of the claims files, relevant examination of the Veteran, and opinions on whether the Veteran has the disabilities at issue due to service, with rationale. Accordingly, the Board finds that VA's duty to assist in 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). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. The Veteran's service treatment records and private and VA post service clinical reports are of record. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his September 2010 Board hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VA personnel must also ask questions to fully explore the bases for each claim. At the September 2010 Board hearing, the Veteran's representative and the VLJ asked the Veteran questions at the hearing about the bases for the service connection issues on appeal. The VLJ also indicated that consideration would be undertaken based on the testimony and evidence of record as to whether an additional examination would be useful to substantiate the claims. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims. The VLJ and the Veteran's representative solicited information to identify any outstanding relevant evidence. Although the VLJ did not specifically suggest the submission of evidence that may have been overlooked, the Veteran has not been shown to be prejudiced in this regard, as there was no indication that there existed overlooked evidence to identify. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claims The Veteran seeks service connection for chondromalacia manifested by pain in the hands and leg, to include a left knee disability, and for disability of the left ankle, to include as secondary to left knee disability. He has contended, including at his videoconference hearing, that he complained of knee and joint pain in service, which include the left ankle, and that he has had joint problems since service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for a disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). . Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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 v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records reveal that there were no relevant complaints or clinical findings on preservice medical history and physical examination reports dated in March 1979. The Veteran complained in June 1980 of a one year history of bilateral knee pain, and chondromalacia was diagnosed. He complained in December 1982 of intermittent left knee pain for the previous year; the assessment was status post left knee sprain, questionable arthritis. X-rays of the knees in June 1983 were considered to be within normal limits. He complained in October 1983 of left leg pain around the knee area and left foot, with the pain becoming constant approximately six months ago. Physical examination of the left knee was within normal limits; and the assessment was history of chondromalacia patella. The Veteran complained later in October 1983 of bilateral knee pain, and chondromalacia was diagnosed. He complained in July 1984 of a three year history of multiple joint pain; physical evaluation, including range of motion of the joints, was within normal limits, and the assessment was history of chondromalacia. He complained in August 1984 of joint pain in his hands for the past 3-4 years; range of motion was normal. The Veteran complained in October 1984 of intermittent swelling of the knees, worse with activity. Physical examination showed full range of motion of the lower extremities; the assessment was chondromalacia patella, bilateral. May 2001 X-rays of the left knee were described as unremarkable. VA treatment reports dated in December 2003 and January 2004 reveal that the Veteran was admitted to a chemical dependency treatment program. These records report a history of a left knee injury in childhood, which had bothered him into adulthood. The Veteran said that he was told in 1983 that his left knee joint was wearing out; he indicated that right knee pain started in September 2003. It was noted in VA treatment records for September 2008 that X-rays of the left knee were normal. Also on file are January and March 2009 records from Hennepin County Medical Center. The Veteran complained of ankle pain and of constant pain in the left lower leg for 3-4 years, with intermittent pain starting "after he got out of service in 1981." Gout and reactive arthritis were diagnosed in January 2009, and the diagnosis in March 2009 was left ankle sprain/strain. The Veteran testified at his September 2010 videoconference hearing that the disabilities at issue were related to his complaints of joint pain in service due to his extensive physical training, which included running and crawling in full gear. VA X-rays of the left knee dated in February 2011 reveal mild degenerative changes. A VA MRI of the left knee was obtained in March 2011. It was noted that the Veteran reported a history of remote trauma in 1981 or 1982, with current symptoms for the last 20 years. The MRI did not show any discrete medical or lateral meniscus tearing. It did show minor Grade II chondromalacia involving nonweightbearing articular surfaces of the medial femoral condyle, early chondromalacia of nonweightbering articular surfaces of lateral tibial plateau, mild diffuse chronic-appearing sprain of the medial collateral ligament, and borderline small joint effusion. In response to the February 2011 remand, VA examinations were conducted in November 2011. On knee evaluation, the diagnoses were mild degenerative joint disease, Grade II chondromalacia, and chronic medial collateral ligament sprain. After review of the claims files and examination of the Veteran, the examiner concluded that the Veteran's current knee disabilities were less likely than not incurred in or caused by service injury, event, or illness because there was no record of any treatment for the knees over the last year of service. This examiner concluded that although chondromalacia was reported in service, the Veteran's service treatment records do not show any supporting evidence for a diagnosis of chondromalacia in service, as there is no notation of patellar compression, grinding, or edema and no service history of knee trauma. The diagnosis on evaluation of the left ankle was left ankle sprain. After review of the claims files and examination of the Veteran, the examiner concluded that the Veteran's left ankle sprain was less likely than not incurred in or caused by service injury, event, or illness because there was no diagnosis or treatment of a left ankle disorder in service and the Veteran noted that the onset of left ankle pain was in 2005-2006. The examiner also noted that the Veteran's left ankle disability was not secondary to his left knee. An evaluation of the Veteran's hands was also conducted in November 2011. Mild osteoarthritis of the hands was diagnosed. After review of the claims files and examination of the Veteran, the examiner concluded that the Veteran's hand disability was less likely than not incurred in or caused by service injury, event, or illness because the Veteran reported the onset of hand pain during the previous 10-12 years and there had not been any complaints of a hand disorder prior to 12 years earlier. Based on the above evidence, the Board finds that the disabilities at issue were not incurred in or aggravated by his military service. Although the Veteran complained of knee pain in service and chondromalacia was diagnosed, there was full range of motion of the lower extremities on examinations in July and October 1984 and a VA examiner concluded in November 2011 that there was no medical evidence in service to support a diagnosis of chondromalacia. The initial post-service notation of a knee or ankle disability was not until a number of years after service discharge. Additionally, the only nexus opinions on file, which contain a rationale for each opinion, are against the claims. The VA examiners, who reviewed the medical evidence on file and examined the Veteran, concluded that the Veteran's current knee, ankle, and hand disabilities are not related to service. The Board would also note that, because the Veteran is not service connected for a left knee disability, he cannot be granted service connection for a left ankle disability as secondary to a left knee disorder. See 38 C.F.R. § 3.310. Although the Veteran is competent to report his subjective symptoms, such as joint pain or numbness, he is not competent to report that he has a disability of the knee or ankle due to service. The diagnosis of a specific orthopedic disability and the determination of the etiology of the disability are medical questions and require medical expertise. A layperson is generally not competent to provide a diagnosis or opine on the etiology of an orthopedic disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). The Veteran has not been shown to have had the requisite medical training. Because the preponderance of the most probative evidence of record is against the Veteran's service connection claims on appeal, the claims must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for chondromalacia manifested by pain in the hands and leg, to include a left knee disability, is denied. Entitlement to service connection for a left ankle disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs