Citation Nr: 1338753	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  03-32 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for a right knee disability.

2.  Entitlement to service connection for a left knee disability.


REPRESENTATION

Appellant represented by:	John P. Dorrity, Agent


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A. Barone, Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from December 1999 to August 2001.  These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision by the Newark, New Jersey RO.  In September 2007, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file.  In January 2008, the case was remanded for additional development.  In July 2011, the case was again remanded to ensure compliance with the directives of the January 2008 remand.  In January 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA).

When this case was previously before the Board in July 2011, the Board issued a final decision resolving two additional issues on appeal and remanded the remaining issue of "Entitlement to service connection for bilateral knee disabilities."  In light of development of the evidence completed since the July 2011 remand and the determination below, the issue has been recharacterized to reflect that the 2 knees are being separately addressed.  

When this case was previously before the Board in July 2011, the Veteran was represented by National Association of County Veterans Service Officers.    However, in June 2013 the Veteran submitted a new VA Form 21-22a appointing a new representative.  An August 2013 letter notified the Veteran and his new representative that that the motion to change representation was granted.  The letter also notified the Veteran that he was granted 60 days abeyance to submit additional evidence and/or argument in support of the claim.  That period of time has expired; no new evidence or argument has been received.

The issue of service connection for a left knee disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if action on his part is required.



FINDING OF FACT

The Veteran's current chronic arthritis/degenerative joint disease (DJD) of the right knee is reasonably shown to have had onset during service and continuity of symptoms since.


CONCLUSION OF LAW

Service connection for right knee DJD is warranted.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  However, inasmuch as the benefit sought is being granted (to the extent of the issue addressed with a final decision at this time), there is no reason to belabor the impact of the VCAA on this matter, since any error in notice or duty to assist omission is harmless.  

Analysis

Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed.  The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

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; 38 C.F.R. § 3.303.  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 nexus between the current disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

When the requirements for a chronic disease shown in service (or within the presumptive period under 38 C.F.R. § 3.307) are met, then all subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Walker v. Shinseki, 708 F. 3d 1331, 1335 (2013).  If evidence of a chronic condition is noted during service or during the presumptive period, but chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation of the chronic disease.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: A layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran alleges that he has disability in both knees that had onset in, or is otherwise causally related to, his active military service.  The Veteran has repeatedly reported experiencing knee pain during physical activities in service and has reported experiencing knee pain since that time.

A January 2001 bone scan in service (to evaluate a 5 month history of bilateral lower leg pain) was interpreted as revealing "Stress / degenerative change [of the] right knee."  In another associated report from January 2001, a medical provider noted that the bone scan reported suggested strain/degenerative change of the right knee and made an assessment of "strain/DJD" changes of the right knee.

A March 2001 service treatment record shows that the Veteran was treated for complaints of right knee pain requiring a profile update; the medical assessment at that time was stress changes to the right knee.

A service treatment record from an uncertain date, but apparently from 2000 or 2001, shows that the Veteran requested a prescription for the anti-inflammatory drug Vioxx "for his knees."  The assessment was knee pain.

In August 2001, the Veteran concluded his active duty military service and filed a claim seeking service connection for DJD of his knees; he indicated that he had such disability since January 2001.
A March 2002 VA examination report shows normal range of motion findings with "no evidence of weakness of any of the four ligaments" and "no swelling of the knee and no crepitation."

Postservice medical records present pertinent diagnoses and symptom complaints, first for the right knee and later for both knees.  Right knee chondromalacia was diagnosed by a private medical doctor in a June 2002 private report.  An October 2002 VA treatment report shows that the Veteran reported "[r]ight knee pain constantly" and he reported he "has seen ortho, told cartilage is worn, has early DJD right knee."

A November 2002 VA examination report discusses the Veteran's account of activities and knee symptoms in service and, after "[n]egative examination right and left knee," states "Right patellofemoral stress pain, service-connected, in remission at this time."

A September 2003 VA treatment report shows a medical assessment of "knee arthralgia" and also notes that the Veteran "complains of knee pain and was told he has Arthritis in the Knee."  A September 2004 VA treatment report shows that the Veteran continued to complain of right knee pain.  A May 2006 VA physical therapy note shows ongoing treatment for "b/l patellofemoral syndrome."

Bilateral knee pain symptoms and crepitus consistent with patellofemoral arthritis was assessed in a June 2006 VA outpatient treatment record; the Veteran reported pain was greater in the left knee than the right, and that he had received an injection to treat his right knee.  "Painful deg changes b/l knees," was diagnosed in a July 2006 VA outpatient treatment record.  Bilateral patellofemoral pain secondary to patellofemoral joint DJD and X-rays consistent with "severe [bilateral] patellofemoral DJD, R>L" was diagnosed in a September 2006 VA outpatient treatment record.  Bilateral knee patellofemoral syndrome was assessed in a March 2009 VA examination report.  The same diagnosis was repeated in an October 2009 VA examination report.  An August 2012 VHA advisory medical expert opinion, based on review of the Veteran's medical records, found that "His current diagnosis is patella chondromalacia and patellofemoral  arthritis."
Postservice medical records present a number of diagnostic findings concerning the health of the Veteran's knees.  A January 2002 VA X-ray report covering both knees notes minimal lateral right patellar tilt.  A November 2002 VA X-ray report notes that the imaging was negative for any significant abnormalities of either knee.  A July 2005 VA X-ray report indicates there were no significant abnormalities of the right knee.  A November 2005 VA X-ray report notes "Negative examination of the right knee."  A March 2006 VA MRI report notes grade 4 chondromalacia patella of the right knee.  A June 2006 VA X-ray report notes there was mild joint space narrowing of the medial compartment of the left knee and joint space narrowing of the patellofemoral compartment bilaterally.  A July 2006 VA MRI of the left knee produced findings interpreted as consistent with jumper's knee and a small focus of elevated signal intensity along the patella with no evidence of underlying chondromalacia.  A September 2006 VA medical report notes X-ray findings consistent with "severe [bilateral] patellofemoral DJD, R>L."  An October 2006 VA medical report notes "[i]maging studies reveal chondromalacia" in both knees and "X-rays indicate mild left medial compartment degeneration, right unavailable," and various other findings for both knees.

A March 2009 VA X-ray report shows, for the right knee, an impression of tiny osteophyte off the superior articular surface of the patella on the lateral view, very small suprapatellar right knee joint effusion, and no evidence of an acute displaced fracture-dislocation, and for the left knee, an impression of tiny osteophytes noted off the superior and inferior articular surface of the patella on the lateral view unchanged and no evidence of an acute displaced fracture-dislocation.  An October 2009 VA X-ray report (found in Virtual VA) shows no significant interval change, relative preservation of the joint spaces on non-weightbearing views, and small joint effusions bilaterally.  A November 2011 VA X-ray report (in Virtual VA) shows very mild degenerative changes, particularly medial compartment right knee, with minimal hypertrophic changes bilaterally and no fracture of effusion.

In a September 2011 addendum opinion, the October 2009 VA examiner noted that based on the claims file, the Veteran's history and examination, he believed that the Veteran's bilateral knee disability (patellofemoral syndrome) was less likely as not related to military service.  He noted that the opinion was based on the fact that he saw no evidence of any severe trauma to the Veteran's knees during service; the examiner discussed that the Veteran may have had some knee pain while running and doing physical training in the military, but the examiner believed the pain resolved after that.  The VA examiner explained that patellofemoral pain syndrome is usually due to a patient's body habitus or daily activity or the particular sport they play, and that while the Veteran had some discomfort when he was running and doing physical training during service, he did not continue to perform either of those activities.  The VA examiner added that running and training "aggravated his knees," but did not cause patellofemoral pain syndrome which is usually due to body habitus and not caused by a repetitive type injury.  The VA examiner noted that repetitive type injury can cause the syndrome to aggravate, causing pain and discomfort, but that it usually resolves with time, as the examiner remarked had appeared to have occurred in this case.

The diagnoses and findings pertaining to the Veteran's knees have varied over time.  The September 2011 opinion addressed the Veteran's complaints of knee pain in service but seems to contradictorily indicate that the Veteran's patellofemoral pain syndrome was not related to service and/or had resolved.  The provider did not discuss the diagnostic findings of "stress/degenerative change of the right knee," on the January 2001 bone scan and or the postservice pathology noted on X-ray and MRI reports (including degenerative changes) in either his diagnosis of patellofemoral pain syndrome or his opinion that the Veteran's bilateral knee disability was unrelated to service.  Accordingly, the Board sought further medical guidance from a VHA medical expert.

The August 2012 VHA advisory medical expert opinion received in response (by an orthopedic surgeon) notes that the provider found only one documented visit for a knee problem during active duty service, describing a March 2000 report showing treatment for a cut and bleeding after a fall.  (It is unclear whether the VHA expert's description of this treatment corresponds to what is shown in the service treatment records; the Board notes that it appears that the VHA expert overlooked reports of complaints of knee pain in service, including the March 2001 report and the undated report, each noting knee pain complaints not associated with cuts or abrasions).

The VHA expert discusses the January 2001 bone scan report "could be due to an overuse stress of his."  (The sentence is left incomplete in both the handwritten and typed copies of the opinion.)  The VHA expert notes that the January 2001 bone scan report showed uptake at the calcaneus consistent with plantar fasciitis, and that the Veteran had numerous podiatry visits for plantar fasciitis and was treated with orthotics.  The VHA expert appears to be expressing that the purpose of the in-service bone scan was likely due to foot complaints rather than implying the presence of any significant knee symptoms during service.  The VHA expert finds that "[b]oth of his knee complaints post discharge are most likely due to age related changes.  His Bone Scan in 2001 was done to evaluate his tibial schenisfunecies.  No knee complaint was found in Fort Hood records."  The VHA expert concludes: "His current diagnosis is patella chondromalacia and patellofemoral arthritis.  I agree with prior M.D. evaluation.  There is no evidence of acute or chronic injury during active duty to support a service connected problem with the knee."

The record clearly includes objective evidence of right knee DJD during the Veteran's military service.  Although the postservice medical evidence is somewhat unclear as to precise diagnosis, the August 2012 consulting VHA expert has confirmed that patellofemoral arthritis of the right knee is properly diagnosed.  The Board finds that the evidence reasonably shows a continuity of symptoms of the right knee disability from service to the present time: the Veteran's military service concluded in August 2001 and he filed the current claim seeking service connection for right knee pain that same month, and has continued to receive medical attention for the related complaints since.  In the August 2001 claim for benefits, the Veteran reported that his knee disability began in January 2001; his postservice treatment reports show persisting symptoms and treatment.

Although the September 2011 VA examiner's report and the August 2012 VHA expert's report both express negative etiology opinions (i.e., against the Veteran's claim), the probative value of these is diminished significantly by apparent discrepancies between the facts cited in each rationale and those found in the Board's review of the evidence.  The September 2011 VA examiner's opinion that there is no link between a current right knee disability and service, cites only "patellofemoral syndrome" as the current disability, and does not address the diagnosis of right knee DJD (and evidence of such in service).  The September 2011 VA examiner's opinion also indicates that the author believed that the Veteran's knee complaints in service had resolved.  However, the Board finds that the evidence reasonably shows a continuity of knee symptoms following service.  The August 2012 VHA medical expert opinion notes "only one documented visit for a knee problem during active duty service" and does not acknowledge the undated report of knee pain complaints or the March 2001 report of right knee pain in service.  The August 2012 VHA expert's opinion refers to the January 2001 bone scan in service, but only as to the findings concerning the feet; the VHA expert makes no reference to the finding of right knee DJD in service.  The August 2012 VHA expert's opinion also appears to attribute the Veteran's knee complaints to age-related changes rather than injury.  Notably, onset of DJD in service may provide a basis for establishing service connection for such pathology regardless of whether a precipitating injury is documented.

On longitudinal review of the record, the Board finds that the evidence reasonably supports the Veteran's claim that his right knee DJD is related to the right knee DJD noted on January 2001 diagnostic testing in service.  The Board finds that there is probative evidence of such disability during service, probative evidence of such disability currently, and probative evidence of a continuity of symptoms of such disability from service to the present.  The Board finds that the negative etiology opinions of record are of lesser probative value in that they do not reflect consideration of the pertinent diagnoses or the pertinent findings in service that support the Veteran's claim.  Resolving remaining reasonable doubt in the Veteran's favor, as required by the law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102) the Board concludes that the evidence supports the Veteran's claim, and that service connection for right knee DJD is warranted.

Finally, the Board additionally observes that the Veteran's various other diagnoses associated with right knee symptoms (such as patellofemoral syndrome and chondromalacia, among others) have been consistently associated with symptomatology that appears reasonably indistinguishable from the painful symptoms and impairment of arthritis / degenerative joint disease.  The Board views the grant of service connection for right knee DJD as a complete grant of the benefit sought on appeal.  The DJD characterization of the entity for which service connection is awarded does not imply a denial of service connection for alternate right knee diagnoses shown in the current record.


ORDER

The appeal seeking service connection for right knee DJD is granted.


REMAND

The Board has twice previously, in January 2008, and in July 2011, remanded this matter to secure a medical nexus opinion adequate for appellate review.  When the case was again before the Board in August 2012, the Board found that the medical evidence remained inadequate, and the secured a VHA medical expert opinion in the matter.

The Board finds that the August 2012 VHA expert opinion adequately resolved one critical point in this matter in that it concluded that the Veteran does have left knee DJD.  However, that opinion and the September 2011 VA examiner's opinion do not fully resolve the medical nexus opinions raised.   The September 2011 opinion notes the Veteran's complaints of knee pain in service, but appears to indicate that the Veteran's patellofemoral pain syndrome is unrelated to service and/or had resolved.  The August 2012 VHA expert opinion reflects that the expert overlooked an undated service treatment report showing a potentially pertinent complaint of bilateral knee pain (the expert found no indication of knee complaints during service other than a cut and bleeding after a fall, whereas the undated service treatment record showing bilateral knee pain does not suggest an association with cuts or bleeding but, rather, strongly suggests ongoing internal joint pain).  The August 2012 VHA expert opinion also appears to rely on finding that the Veteran's current left knee diagnoses are age-related rather than due to injury in service.  Notably, onset of a chronic disability during service may provide a basis for establishing service connection regardless of whether there was a related injury.
Furthermore, the grant of service connection for a right knee disability raises a possibility of a secondary service connection theory of entitlement for the left knee disability.  An examination is needed to secure a medical opinion that addresses the related and unresolved nexus question.

Accordingly, the case is REMANDED for the following:

1.  The RO should also arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his left knee disability(ies), and in particular whether or not such disability(ies) is/are related to his military service or was/were caused or aggravated by his service-connected right knee disability.  The Veteran's record (to include this remand) must be reviewed by the examiner in conjunction with the examination.  Based on examination of the Veteran and review of the record, the examiner should provide an opinion that responds to the following:

(a) Please identify (by medical diagnosis) each chronic left knee disability found.  The examiner should specifically note/account for the left knee diagnoses already noted in the record, including patellofemoral pain syndrome and DJD.

(b) As to each left knee disability entity diagnosed, is it at least as likely as not (a 50% or greater probability) that such had its onset during, or is otherwise shown to have directly been caused or aggravated by, his active military service.  [The explanation of rationale should include discussion of the knee pain complaint in service involving the Veteran's request for Vioxx (see undated service treatment record, apparently from 2000 or 2001) and the various diagnostic studies during and following  service, as well as the Veteran's lay statements and documentation noting knee pain symptoms from service to the present.]

(c) As to each left knee disability entity diagnosed, is it at least as likely as not (a 50% or greater probability) that such was caused or aggravated by the Veteran's service-connected right knee and/or foot disabilities?  If the opinion is to the effect that a service-connected disability did not cause, but aggravated, a left knee disability, the examiner should quantify, so far as possible, the degree of left knee disability resulting from such aggravation.

The examiner must explain the rationale for all opinions.

2.  The RO should then review the record and readjudicate the issue remaining on appeal.  If is remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his agent the opportunity to respond.  The case should then be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.  


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs