Citation Nr: 1338847 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-37 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the residuals of a back injury, to include degenerative disc disease (DDD) and arthritis. 2. Entitlement to service connection for a right knee disability, to include arthritis. 3. Entitlement to service connection for a left knee disability, to include arthritis. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to December 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. All claims for service connection were denied in this decision. In April and December 2012, this case was remanded so the Veteran could be afforded a hearing. In March 2013, the Veteran testified before the undersigned at a Board Videoconference hearing. A transcript is associated with the file. In June 2013, the Board remanded the issues currently on appeal, and granted claims of service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. A current back disability, to include DDD and arthritis, is not related to a diseases or injury in service. 2. A current left knee disability, to include arthritis, is not related to a disease or injury in service. 3. A current right knee disability, to include arthritis, is not related to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a back injury, to include DDD and arthritis, are not met. 38 U.S.C.A. §§ 1110, 1112(a), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a left knee disability, to include arthritis, are not met. 38 U.S.C.A. §§ 1110, 1112(a), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for a right knee disability, to include arthritis, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b)(1). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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 re-adjudication 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). Here, the Veteran was sent a letter in April 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran 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 treatment and the June 2013 VA examination. Moreover, the statements in support of the claim are of record, including testimony provided at the March 2013 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Veteran was given the opportunity to submit an authorization and consent form for Dr. M.'s records and failed to return the form (see June 2013 letter from the Appeals Management Center). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the March 2013 Board hearing shows the Veteran gave information regarding his claims and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran has not raised complaints regarding the conduct of the hearing. Neither has his representative, who was present at the hearing. The objectives of the June 2013 Board remand have been met. In June 2013, the AMC sent the Veteran a letter inviting him to complete an enclosed authorization and consent form for Dr. M.'s office; the Veteran did not respond to this letter. The Veteran attended a June 2013 VA examination. For reasons explained further below, the Board finds the June 2013 VA opinion is fully adequate and takes into account all pertinent aspects of this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). The Board finds the duties to notify and to assist have been met. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). Service connection generally requires evidence of (1) a current disability; (2) lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a) and includes arthritis. See, Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). As arthritis has been diagnosed, the Board will consider this avenue of entitlement. Additionally, if a chronic disease is shown to a compensable degree within one year of service, service connection will be presumed. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service and at any time thereafter, service connection will also be conceded. 38 C.F.R. § 3.303(b). When the evidence is in equipoise, VA shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which a veteran served, a veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1) (West 2002). The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves a three 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; in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498, 511. 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(a)(2) (West 2002). 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) (lay evidence may be sufficient to provide a nexus between current disability and service). Residuals of a Back Injury Here, the Board finds the Veteran has a current disability (see June 2013 VA examination report) and, as a threshold matter, initially accepts that there was a back injury in service (see September 1990) service treatment record. The issue is whether there is a nexus to service. Shedden, 381 F.3d at 1167; Walker, 708 F.3d at 1337. The Veteran has reported that he was treated for a back injury in service (Transcript, pp 3-4). At the March 2013 Board hearing, the Veteran asserted the clinician forgot to note back problems after his bike accident in September 1990. (Transcript, p 3.) He said that within a year after service, in 1994, a doctor told him "in the low back, he could see bulging discs the first thing there and he was of course you know a lot of exercise and a lot of stretching. But over a period of time, it's just getting worse, and worse and worse." (Transcript, p 5.) A September 1990 service treatment emergency room record shows the Veteran's involvement in a bicycle accident. He arrived via ambulance. The neurological checks were good and he had a complete range of motion. The assessment or diagnosis was of a "normal examination." A July 1994 separation report of medical examination (RME) shows the spine was clinically normal and he denied recurrent back pain on the report of medical history (RMH). June 2002 and June 2006 chiropractor records showed he complained of low back pain for about one year. A December 2006 chiropractor record noted low back or sciatic pain from getting out of a truck. An October 2009 MRI of the spine revealed multilevel disc protrusions and degenerative disc disease. An October 2009 Dr. D.M. record showed the Veteran complained of low back pain that radiated to the knee after gardening two weeks prior; "somatic dysfunction;" and an assessment of lumbar sprain. The Veteran received a VA examination in July 2013. The examiner diagnosed DDD and noted the Veteran's reported history. Arthritis of the thoracolumbar spine was also found by X-ray. Current spine symptoms were recorded. The examiner determined it was less likely than not that the current spine disabilities were caused by service. The examiner stated it would be merely speculative to state otherwise. The reason was because the 1994 separation examination showed no complaint of recurrent back pain or an abnormal examination (four years after the accident). His private medical records stated he only had pain for about a year in 2001. His records are silent for any back complaints from 1994 to 2001. Therefore, there was no chronicity and a negative opinion was provided. The Veteran's statements regarding spine symptoms are competent because back pain is within his own personal experience. See 38 C.F.R. § 3.159(a). He is competent to say that he had back pain in service and that he had recurrent symptoms in following years. He also reported him a doctor told him he had bulging discs, but he was not specific about what point in time this occurred. Historically, a lay person's report of medical opinions related by medical professionals constituted medical hearsay and was not by itself considered competent medical evidence because "filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). More recently, the Federal Circuit has held that a lay person can be competent to report the diagnoses he was told about. Jandreau, 492 F.3d 1372. The Veteran's statements as to continuity lack credibility. The Veteran's report of continuous symptoms since service conflicts with his denial of back symptoms at separation and his report in 2002 of back pain for the past year. This inconsistency is not insignificant. Caluza, 7 Vet. App. at 517. To determine the probative value of medical opinions the Board considers three factors. See Nieves-Rodriguez, 22 Vet. App. 295. The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The June 2013 opinion is the most probative evidence of record as the examiner reviewed the file, interviewed the Veteran, performed an examination and provided reasons for the conclusion reached. The reasons included the conflicting information, no abnormal examination at separation as well as the passage of time without treatment. See, Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (Mere passage of time is not dispositive of the issue, but is only one factor in deciding the claim); Buchanan, 451 F.3d at 1336 (Fed.Cir.2006) (Before the Board may find a veteran's assertion lacks credibility, something more besides a lack of contemporaneous medical records is needed). This opinion is based on an accurate reading of the record and medical knowledge. It is fully articulated. See Nieves-Rodriguez, 22 Vet. App. at 304. As the Board does not find that the current back disability started until much later, the one year presumption is not for application here. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The evidence is against finding a link between a current back disability and service. Because the weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Right and Left Knee Disabilities The June 2013 VA examination report shows current diagnoses of degenerative joint disease (arthritis) in both knees. VA treatment records show complaints of knee pain and a diagnosis of bilateral chondromalacia. Hence, a current disability is demonstrated. Service treatment records show he was treated for chondromalacia of both knees several times. In June 1980, the Veteran reported bilateral knee pain for one month with no outward symptoms and an assessment of questionable chondromalacia. A May 1982 service treatment record shows knee pain for one year and an assessment of chondromalacia. In July 1983, the Veteran complained of a trick or locked knee in a RMH; it was determined to be chondromalacia and was not considered disabling. An October 1988 service treatment record showed chronic chondromalacia patella of knees. As noted above, September 1990 ER records show he was in a bike accident and reported right leg pain. A July 1994 separation RME and RMH show the lower extremities were clinically normal and the Veteran denied a trick or locked knee. This evidence establishes an in-service injury. Again, the issue is whether there is a nexus to service. Shedden, 381 F.3d at 1167; Walker, 708 F.3d at 1337. The Veteran stated at the March 2013 Board hearing that he had constant bilateral knee pain from "going up and down ladders" from daily life onboard a ship. (Transcript, pp 8-9). A February 2002 OFMC record showed that the Veteran complained of mild pain while working out and gradual swelling of the knees over time. He reported he had a left knee injury while working out. The left knee had moderate effusion, but decreased mild range of motion. He had no pain on palpation but his right knee had full range of motion and no effusion. An X-ray showed the bilateral knees were within normal limits. He was to undergo physical therapy for two weeks. July to October 2004 private orthopedic surgeon records show the Veteran injured his left knee when he fell while bowling. MRI findings were noted; the impressions were tears or sprains of the left anterior cruciate ligament (ACL) and medial collateral ligament (MCL). There was also a probable non-displaced tear of the posterior horn medial meniscus. There was large joint effusion with considerable soft tissue swelling. The impression was ruptured quadriceps tendon of the left knee, rule out internal derangement. Arthroscopic surgery was recommended and completed in July 2004. There was a partial medial and lateral meniscectomy, a resection of the torn portion of the ACL, and quadriceps and retinactular repair. Follow up visits shows the surgery was successful and an October 2004 note shows that he was doing well in physical therapy. The July 2013 VA examination report noted past diagnoses of chondromalacia patella of the bilateral knees and the current degenerative joint disease of both knees. The history of the knee problems was noted, including 2004 surgery. The examiner found that the current knee disabilities were less likely than not related to service. The examiner explained that since his current problems were related to more recent injuries over the past several years, it would be merely speculative to state that the current knee disabilities were related to his knee complaints in service. The reasons for this opinion included that the separation examination was silent for any complaint of a knee condition. The examiner also noted the medical findings of recent knee treatment did not support that the current knee problems were the same as the ones the Veteran had in service. In February 2002, he injured his knee while working out and he injured it again in 2004. The findings on the MRI noted meniscal, ACL, and quadriceps tendon tears which are associated with twisting movement and typically occur with a "pop" sound as the Veteran experienced while bowling in 2009. These are separate entities from the chondromalacia the Veteran was diagnosed with in service. The Veteran's statements regarding his knee symptoms are competent because knee pain is within his own personal experience. See 38 C.F.R. § 3.159(a). Again, the Veteran's current statements, to the extent they might support continuous knee pain since service, conflict with his denial of knee problems at separation from service and reports during treatment in 2002. Caluza, 7 Vet. App. at 517. The Veteran's reports of a continuity of symptomatology are not deemed credible. The Board finds the June 2013 VA examination report to be highly probative as the examiner reviewed the file, interviewed the Veteran, performed an examination and provided reasons for the conclusion reached. These reasons included the cited intervening injuries since service, noting that the current knee disabilities were separate from the chrondromalacia diagnosed in service and that the Veteran denied knee problems at separation. As the Board does not find that the current knee disabilities were present until long after service, the one year presumption cannot serve to establish service connection. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board finds an essential element of the claim to be missing. Shedden, 381 F.3d at 1167. The weight of the evidence is against the claim, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the residuals of a back injury, to include degenerative disc disease (DDD) and arthritis, is denied. Service connection for a right knee disability, to include arthritis, is denied. Service connection for a left knee disability is denied, to include arthritis, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs