Citation Nr: 1338558 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-25 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected residuals of a right ankle fracture/sprain. 2. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected residuals of a right ankle fracture/sprain. 3. Entitlement to service connection for a right foot disorder, to include as secondary to service-connected residuals of a right ankle fracture/sprain. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served in the Army on active duty for training from October 1977 to January 1978. He served on active duty from November 1978 to December 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran now resides in Georgia and, as such, his appeal is now handled by the RO in Atlanta, Georgia. This appeal has been remanded by the Board on multiple occasions, including in January 2010, May 2011, and most recently in August 2012, for additional development. As will be discussed below, it appears that the directives of the Board have been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the appeal has been returned to the Board for adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran currently has a right or left knee disorder that was incurred in or aggravated by active military service or is secondary to a service-connected disability; the evidence also preponderates against a finding that the Veteran manifested osteoarthritis of the bilateral knees within his first post-service year. 2. The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran currently has a right foot disorder, including calcaneal spurs, that was incurred in or aggravated by active military service or is secondary to a service-connected disability. CONCLUSION OF LAW 1. A right or left knee disorder was not incurred as a result of the Veteran's active military service, to include as a result of service-connected bilateral knee and right foot disabilities; nor may arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. A right foot disorder, including calcaneal spurs, was not incurred as a result of the Veteran's active military service or as a result of the service-connected right ankle disability; nor may arthritis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a September 2012 letter, which was sent after the initial unfavorable AOJ decision issued in February 2006, advised the Veteran of the evidence and information necessary to substantiate his service connection and secondary service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The September 2012 letter also informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Indeed, review of the record reveals that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appeal and given ample time to respond, as evidenced by the issuance of several statements of the case throughout this appeal and the receipt of the Veteran's argument and evidence in support of his appeal. The AOJ also readjudicated the case by way of a supplemental statement of the case issued in February 2013 after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of private and VA treatment. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. In addition, a review of the Virtual VA paperless claims processing system includes additional VA treatment records dated from February to September 2012 that were considered in the most recent SSOC issued in February 2013. The Board notes that the Veteran was also provided with several VA medical examinations in conjunction with this appeal, including in July 2006, September 2010, and November 2010. VA also obtained an independent medical opinion in conjunction with this claim in November 2012 and July 2013. There is no indication or allegation that the examinations conducted in this appeal were inadequate to evaluate the Veteran's bilateral knee or right calcaneal spur disabilities. Likewise, as discussed in detail below, the Board finds that the evidentiary record contains an adequate medical opinion that addresses whether the claimed disabilities are related to the Veteran's military service or his service-connected right ankle disability. As such, the Board concludes that no further examination is necessary is conjunction with this appeal. Additionally, actions required in the various Board remands have been accomplished. In the August 2012 remand, the RO/AMC was directed to conduct additional evidentiary development, including providing the Veteran with adequate VCAA notice and obtaining addendums to the previous VA examination reports. Review of the record reveals that all requested development was conducted. As such, the Board finds that there was substantial compliance with the May 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998; D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). For the above reasons, no further notice or assistance to the Veteran 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). Indeed, VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court of Appeals for Veterans Claims (Court) recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board will evaluate the claims herein with this holding in mind. In this context, service connection for certain chronic disorders, including arthritis, will be rebuttably presumed to have been incurred in or aggravated by service if manifested to a compensable degree within a specified period of time following active service, e.g., one year for arthritis. 38 U.S.C.A. § 1110, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition to the foregoing, service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks entitlement to service connection for a right and left knee disorder (hereinafter "a bilateral knee disorder") and a right foot disorder. In support of his claim, he has asserted that he injured his knees while skating off post while he was assigned to the 101st airborne unit. He also attributes his knee and foot problems to marching long distances with heavy packs during service. See statements submitted by the Veteran in September and November 2005. In the alternative, the Veteran asserts that his current bilateral knee and right calcaneal spur disabilities are secondary to his service-connected residual right ankle disability. Due to the similar medical history and evidence related to these claims, as well as the similar disposition of the issues, the Board will address them in a common discussion. Review of the record reveals the Veteran has been diagnosed with osteoarthritis of the bilateral knees and calcaneal spurs of the right foot. See June 2007 VA treatment record; July 2006 VA/QTC examination report. Accordingly, the first element of service connection is established. Turning to second criteria, in-service incurrence or aggravation of a disease or injury, the service treatment records (STRs) show the Veteran injured both knees in June 1980. The assessment was a mild contusion injury, as x-rays of the knees were normal. The Veteran subsequently complained of left knee pain in August 1980, and the resulting assessment was a painful right knee. The STRs do not contain any further complaints, treatment, or diagnosis of a bilateral knee condition. The STRs show the Veteran sought treatment for blisters on his feet during service, as he reported that his feet were rubbing against his boots on a 12 mile march. See STRs dated August and September 1981. However, objective examination did not reveal any evidence of calcaneal spurs on either foot at that time. In fact, the STRs do not contain any complaints, treatment, or diagnosis of calcaneal spurs on either foot or any other right foot disorder during service. The STRs do not contain a report of medical examination conducted when the Veteran was discharged from service in December 1981. However, in the evaluation of this claim, the Board finds probative that, while the Veteran is shown to have sought treatment for left and right knee pain during service, his pain was not attributed to a chronic bilateral knee disability, such as arthritis, that was manifested during or throughout service. Similarly, there is no lay or medical evidence showing manifestations or a diagnosis of chronic right foot calcaneal spurs during service. Accordingly, based upon the evidence of record, the Board finds that a chronic bilateral knee or right foot disorder, including calcaneal spurs, was not manifested during service. The Veteran has reported receiving treatment for weak knees and ankles from military service to the present. See September 2005 VA Form 21-526. He specifically reported receiving treatment from Fairview Hospital and the VA Medical Center (VAMC) in Chattanooga as early as the 1980s; however, Fairview Hospital informed VA that it does not have records dated in 1984 or 1985, while the Chattanooga VAMC also certified that it does not have records dated from 1984 to 2005. Nevertheless, the Veteran is competent to report that he continued to experience symptoms involving his knees and right foot/ankle after service. The first time the medical evidence shows the Veteran to have a bilateral knee or right foot/ankle problem after service is July 2005, when he presented for VA treatment complaining of a myriad of problems, including pain affecting his bilateral knees and ankles. The pertinent assessment was edema of the lower extremities and weakness in the legs. Notably, x-rays of the bilateral knees were normal at that time, but x-rays of the right ankle revealed minimal degenerative changes in the medial and lateral aspect of the right ankle and plantar calcaneal spurring. The Veteran was subsequently diagnosed with osteoarthritis affecting the bilateral knees in July 2007. There is no competent evidence showing the Veteran manifested or was diagnosed with arthritis affecting the right foot/ankle or bilateral knees at any time prior to July 2005 or July 2007, respectively. Therefore, because the finding of arthritis was not made within one year of service discharge, the Board finds that the evidence of record is against the Veteran's claim on a presumptive basis. In evaluating this claim, the Board notes that, while the Veteran is competent to report having continued bilateral knee and right foot/ankle symptoms since service, the gap of more than 20 years in the record - between the time he was discharged from service in 1981 and is first shown to have a right foot/ankle or bilateral knee disorder in 2007 - militates against a finding that a chronic bilateral knee or right foot/ankle disability was incurred during service and also rebuts any assertion of continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999). In this context, the Board also finds probative that, when the Veteran sought treatment in July 2005, his reported medical history did not include reports of continued bilateral knee or right foot/ankle problems since service. Instead, the Veteran reported having pain in his bilateral knees and ankles without indentifying the onset of his symptoms but, notably, the examining physician seemed to attribute the pain to the Veteran's weight gain over the previous year. See VA treatment records dated July and August 2005. It is logical to assume that the Veteran would have sought treatment for pain in his knees during the years between service discharge, and 2005. Additionally, the examining physician attributed the pain to a cause other than service. This evidence weighs against the Veteran's claim that his symptoms have been continuous since service discharge. Finally, the Veteran was afforded several VA examinations in conjunction with this appeal and, as a result, the evidentiary record contains several medical opinions that purport to address whether the Veteran's current bilateral knee and right calcaneal spur disabilities are related to his military service or his service-connected disabilities. In this regard, the Board notes that the Veteran was afforded a VA/QTC examination in July 2006 when bilateral knee strain and bilateral calcaneal spurs were diagnosed; however, the examiner did not provide an opinion regarding the likely etiology of those disabilities. With respect to the other medical opinions of record, the medical opinions are deemed inadequate because they (1) are not supported by an adequate rationale and (2) do not address whether the current bilateral knee or right calcaneal spur disabilities are secondary to his service-connected right ankle disability. See VA examination reports dated September 2010 and November 2010; see also June 2011 and November 2012 addendum reports. Nevertheless, in July 2013, an independent VA orthopedist reviewed the entire evidentiary record and provided a medical nexus opinion regarding the Veteran's bilateral knee and right calcaneal spur disabilities. As to the bilateral knees, the VA physician opined that it is not likely that the Veteran's current bilateral knee osteoarthritis and complaints of pain have any relevance to his military service. In making this determination, the physician noted that, while the Veteran was treated for knee pain after long marches during service in 1980, x-rays of his knees were negative at that time and there is no record that he ever directly or seriously injured his knees during service. The VA physician noted there is one episode of right and left knee pain in June and August 1980, respectively, but he also noted that x-rays were negative in June 1980 and that the Veteran completed a 12 mile march in April 1981 without complaints regarding the knees. The VA physician also observed that in the Veteran's post-service employment, he sustained injuries after falling from a ladder while working as an electrician in November 2000. The VA physician noted that the Veteran applied for Social Security benefits based on spinal injuries and right ankle sprains at that time but did not mention his knees. He also noted that the Veteran weighed 194 pounds in service, but his weight ranged from 430 to 460 pounds when he suffered the post-service ladder injury. In this context, the VA physician stated that the Veteran's weight alone should have played a single major factor in the development of osteoarthritis by the age of 50, further noting that one would expect even more severe osteoarthritis than that noted at the September 2010 VA examination, considering his morbid obesity. With respect to secondary service connection, the VA physician also opined that it is not at least as likely as not that the Veteran's bilateral knee osteoarthritis is proximately due to or the result of the service-connected right ankle disability, noting that the Veteran worked for 25 years after service while going up and down ladders, repeatedly bending his knees, and with the stresses of morbid obesity; however, the examiner noted there was no documentation of a residual knee injury during that time. He also opined that it is not at least as likely as not that the Veteran's bilateral knee osteoarthritis is aggravated by the service-connected right ankle disability, noting that the Veteran actually developed less osteoarthritis than expected in a man weighing 450 pounds and did manual labor on steps and installing pools for many years. In this regard, the VA examination also noted that the Veteran has no record of treatment for his right ankle or knees during a long period of post-service employment. As to the right foot disorder, which has been diagnosed as calcaneal spurs, the VA physician opined that it is not likely that the Veteran's current right calcaneal spur disability developed during active service, noting that, while there are documented right ankle sprains and blisters around the toes after long marches, for which the Veteran received treatment, calcaneal spurs were neither incurred in or aggravated during service. In this regard, the VA physician noted that foot x-rays did not indicate calcaneal spurs or fractures. He also noted that the Veteran's morbid obesity is directly related to exaggerated stress over the foot arches causing plantar fasciitis and calcaneal spurs. With respect to secondary service connection, the VA physician further opined that the current right calcaneal spur disability is not proximately due to or the result of his service-connected right ankle disability, again noting that calcaneal spurs are directly related with morbid obesity and years of manual laborious work, which the Veteran managed to do for many years after service. The VA physician also opined that it is not likely the right calcaneal spurs are aggravated by his service-connected right ankle disabilities, noting that lower extremity joints are weight-bearing joints mechanically designed to fail if overloaded for a long period of time. The physician noted that morbid obesity is known to cause all of the mechanical problems of the lower extremity joints causing tendonitis, plantar fasciitis and osteoarthritis. He ultimately stated that the Veteran's chronic morbid obesity is the aggravating cause for all of the symptoms of the lower extremity joints. The July 2013 VA opinion is considered the most competent, credible, and probative evidence of record with respect to whether the Veteran's current bilateral knee and right calcaneal spur disabilities are related to military service or are secondary to his service-connected right ankle disability. The Board finds that the July 2013 VA opinion was based upon all relevant facts in this case, as the VA physician reviewed the claims file, including the Veteran's lay statements and multiple VA examinations of record and provided a detailed discussion of the Veteran's military and post-military history. In this regard, the VA physician noted the importance of the Veteran's post-service employment on the development of his current bilateral knee and right calcaneal spur disabilities. The July 2013 VA physician also provided a detailed discussion as to why he concluded that the Veteran's weight and morbid obesity is the most likely cause of his current bilateral knee and right foot disabilities. The Board notes that the July 2013 VA opinion was based upon the evidence of record and supported by a complete rationale. Indeed, the VA examiner's opinion is supported by the other evidence of record, inclusive of the service and post-service treatment records, which do not show that (1) a chronic bilateral knee or right calcaneal spur disability was manifested during service or for many years thereafter or (2) that the Veteran's service-connected right ankle disability has caused, resulted in, or aggravated his current bilateral knee or right calcaneal spur disabilities. In evaluating this claim, the Board finds probative that there is no opposing evidence of record which attempts to establish a nexus between the Veteran's current bilateral knee and right calcaneal spur disabilities and service and is more competent, credible, and probative than the July 2013 VA opinion. Thus, the Board finds that the third element of direct service connection has not been met because a causal connection between the Veteran's military service and his current bilateral knee and right calcaneal spur disabilities has not been established. The Board has considered the Veteran's lay assertions of a nexus between his military service and current bilateral knee and right calcaneal spur disabilities. In this regard, the Veteran is competent to report the nature and severity of his current knee and right foot disabilities, as his symptoms are capable of lay observation and report. See Layno, supra. However, osteoarthritis and calcaneal spur disabilities are not conditions that are generally capable of lay observation but, instead, require clinical evaluation and diagnosis by a medical professional. As a result, the determination as to the presence and etiology of that disability is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, the question of the etiology of the Veteran's bilateral knee and right calcaneal spur disabilities is not a simple medical question and it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between his claimed disabilities and service. In addition, the Veteran has only offered conclusory statements regarding the relationship between his military service and current disabilities, while the July 2013 VA physician took into consideration all the relevant facts in providing his opinion, which was based upon his review of relevant facts in this case, as well as his medical expertise. As such, the Veteran's statements regarding a nexus between his current bilateral knee and right calcaneal spur disabilities and military service are not considered competent or probative evidence favorable to his claim and are outweighed by the medical opinion provided by the July 2013 VA physician. In sum, the Board finds the preponderance of the evidence is against the grant of service connection for a left and right knee disorder or a right foot/calcaneal spur disorder. The preponderance of the evidence is against a showing that a chronic bilateral knee disability or right foot disability were manifested during service or for many years thereafter. The most competent, credible, and probative evidence weighs against a finding that the Veteran's current bilateral knee or right foot disabilities are otherwise related to his military service. The Board has considered whether the Veteran's claim may be granted on a secondary basis, as he has asserted that his current bilateral knee and right foot disabilities are a result of his current service-connected right ankle disability. In this context, review of the record reveals that service connection for residuals of right ankle fracture/sprain was established effective September 9, 2005. However, as discussed in detail above, the most competent, credible, and probative evidence of record establishes that the Veteran's current bilateral knee and right calcaneal spur disabilities are not likely a result of, proximately due to, or aggravated by his service-connected right ankle disability. Instead, the most competent, credible, and probative evidence of record attributes the Veteran's current bilateral knee and right foot disabilities to morbid obesity. There is no opposing lay or medical evidence of record which is deemed more competent, credible, or probative as to whether the current bilateral knee or right calcaneal spur disabilities are secondary to the service-connected right ankle disability. Therefore, service connection for a left or right knee disability or a right foot disability is denied as secondary to the service-connected right ankle disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310. In summary, and based on the foregoing reasons and bases, the Board finds the preponderance of the most competent, credible, and probative evidence is against the grant of service connection for a bilateral knee or right foot disability, to include as secondary to service-connected right ankle disability. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. ORDER Entitlement to service connection for a right or left knee disorder is denied. Entitlement to service connection for a right foot disorder, including calcaneal spurs, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs