Citation Nr: 1338842 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-32 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for shin splints. 4. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1987 to December 1991. These matters come before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was scheduled for a BVA Video Hearing in June 2011, as requested in his July 2010 substantive appeal. The Veteran withdrew his request for a hearing. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). These matters were remanded in January 2013 for additional development. In January 2013 the Board also remanded the issue of entitlement to service connection for residuals of the loss of a digit, left hand. A subsequent August 2013 rating decision granted service connection for residuals of the loss of a digit, left hand. As that decision represents a full grant of the benefit sought with respect to that claim, it will not be further addressed herein. The issue of service connection for a lumbar spine disorder is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A right knee disorder was not manifested in, and is not shown to be related to the Veteran's service. 2. A left knee disorder was not manifested in, and is not shown to be related to the Veteran's service. 3. Shin splints were not manifested in, and are not shown to be related to the Veteran's service. CONCLUSIONS OF LAW 1. Service connection for a right knee disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. Service connection for a left knee disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. Service connection for shin splints is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A May 2008 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The May 2008 letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. Regarding the duty to assist, the Board notes that the Veteran's service treatment records (STRs) have been determined to be unavailable. In an April 2009 Formal Finding, the RO determined that all efforts to obtain the needed information have been exhausted and further attempts would be futile. The Veteran's service entrance examination has been subsequently associated with the claims file. In cases, such as the present case, where the claimant's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the claimant in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records and alternative sources of evidence to substantiate the claim. Dixon v. Derwinski, 3 Vet. App. 261 (1992). This heightened duty has been satisfied. Pursuant to the Board's January 2013 remand, efforts were made to obtain records from the US Naval Hospital in Long Beach, California; records from boot camp in San Diego, California; and sick bay records from the USS Francis Hammond. These records were also determined to be unavailable. See August 2013 Formal Finding. Service personnel records and post-service VA and private treatment records have been secured. The Veteran was afforded a VA examination in June 2009. The Board's 2013 remand requested an examination and a medical opinions, which were obtained in June 2013. The examinations and medical opinions, with respect to the knees and shin splints, are adequate for rating purposes, as they reflect that the examiner had familiarity with all factual data, they include all necessary findings, and they include an explanation of rationale for the opinions provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Accordingly, the Board will address the merits of these claims. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may 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). To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 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 Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA," with an emphasis on the evidence relevant to the matter on appeal. 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. The Veteran contends that in 1989 he was diagnosed with chondromalacia patellae of both knees in service. The Veteran argues that this could have been caused by running up and down ladders. He indicates that he has been on Motrin since service and continues to take it to this day to alleviate pain. See July 2011 Statement. The Veteran additionally asserts that his shin splints were diagnosed in boot camp and continue to act up on occasion. He reports rubbing them down with a "liniment" and wrapping them with an ace bandage. See July 2011 Statement. On service entrance examination in July 1987, the Veteran's lower extremities were clinically evaluated as normal. January and February 2009 VA treatment records note an assessment of chronic knee pain. Radiographs of the knees obtained in January 2009 were unremarkable. In May 2009, the Veteran was seen complaining, in part, of bilateral leg pain. A June 2009 record notes the Veteran was seen complaining of right leg pain and tingling. This record also noted that the Veteran had recently fallen from a ladder while cutting tree branches. On June 2009 VA examination, the Veteran reported onset of pain in both knees in 1999. Bilateral knee strain was diagnosed. On June 2013 VA examination, bilateral knee strain and bilateral medial tibial stress syndrome (shin splints) were diagnosed. After a review of the claims file including the lay statements of record, the examiner opined that it was less likely than not that the Veteran's bilateral knee disorder manifested or is otherwise causally related to service. The examiner explained that there is no evidence of an evaluation of, treatment for, or a diagnosis of a left and right knee condition until the VA orthopedic evaluation dated in March 2009 when chondromalacia patella was diagnosed. Regarding the shin splints, the examiner also opined that such condition was less likely than not to have manifested or be otherwise causally related to service. The examiner indicated that after reviewing the complete claims file, he could find no evidence of an evaluation of, treatment for, or a diagnosis of shin splints. It is not in dispute that the Veteran has been diagnosed with bilateral knee strain and shin splints. These disorders have been diagnosed by VA, to include on VA examination in June 2013. What remains for consideration is whether such disorders may somehow be related to the Veteran's service. In this regard, the most probative and persuasive evidence of record shows that the Veteran's current bilateral knee disability and shin splints are unrelated to service. Indeed, the only medical opinion of record was negative: the June 2013 finding that it was less likely than not that such disabilities were related to service. The examiner cited to the factual record, including treatment records, the Veteran's lay statements, and lay statements from V.S., L.S., and C.M. As support for the opinion, the examiner noted that there was no evaluation of, treatment for, or diagnosis of shin splints elsewhere in the record, and that there was no evaluation of, treatment for, or diagnosis of a disorder with respect to either knee in the record until 2009. Notably, a diagnosis regarding the knees did not come until 2009, and a diagnosis of shin splints did not come until 2013 on VA examination. Because the examiner expressed familiarity with the record, including the lay statements, and cited to supporting factual data, his opinion is highly probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the opinions of the examiner are the only medical opinions in the record. Given the depth of the examination report, including citation to the factual record and specific lay statements, and medical opinions, and the fact that the opinions were based on a review of the complete record, including the lay statements of record, the Board finds such opinions are highly probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the onset and etiology of a bilateral knee disorder or shin splints falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (laypersons are not competent to diagnose cancer). Such matters require medical knowledge. In this case, the Board finds that the etiology of knee disability and shin splints requires medical expertise. The Veteran, V.S., L.S., and C.M. have not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that these individuals received any special training or acquired any medical expertise in evaluating orthopedic/musculoskeletal conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. In sum, the preponderance of the evidence is against associating the currently diagnosed bilateral knee strain and shins splints with his service. In making this determination the Board has considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the claims, and the rule does not apply. Gilbert, 1 Vet. App. at 55. Therefore, the appeals in these matters must be denied. ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. Service connection for shin splints is denied. REMAND The Board's January 2013 remand asked that an examination be obtained to determine the nature and etiology of his lumbar spine disorder. Specifically, the examiner was asked to provide a rationale for any opinion provided. While the examiner provided a thorough discussion of the medical evidence, including treatment records indicating a post-service on-the-job injury in 2000 and a 2005 injury as a result of a motor vehicle accident, a rationale was not provided in the negative June 2013 medical opinion or in the subsequent negative opinion provided in the July 2013 addendum. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Board regrets the continued delay in this case, since the RO has not substantially complied with the Board's January 2013 remand instructions, a further remand is necessary. Accordingly, the case is REMANDED for the following: 1. The Veteran's claims file should be returned to the June 2013 examiner (or to another appropriate medical provider if the June 2013 examiner is not available) for review, and a supplementary medical opinion regarding the nature and etiology of his diagnosed low back disability is requested. For purposes of this opinion, the opinion provider is asked to presume that the Veteran slipped in-service while transporting armor plates to another part of the ship, and to note post-service reports of (1) on-the-job back injury in 2000 followed by back surgery in 2001, and (2) back injury as a result of a motor vehicle accident in 2005. Following a review of the claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that any lumbar spine disorder had its onset during the Veteran's active service or is otherwise causally related to his service. It is essential that a complete rationale (that explains the reasoning supporting the opinion provider's conclusions) be provided for all opinions. 2. Thereafter, the RO should review the record and readjudicate the claim for service connection for a low back disorder. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs