Citation Nr: 1339054 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 07-29 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to March 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In June 2013, the Board remanded the Veteran's claim for additional development. A supplemental statement of the case was issued in September 2013 by the VA Appeals Management Center (AMC), which continued the denial of the claim. The case is once again before the Board. A review of Virtual VA reveals that it contains VA treatment records relevant to the issues on appeal. These records were reviewed by the Appeals Management Center (AMC) prior to issuing the September 2013 supplemental statement of the case and by the Board prior to issuing this decision. A review of the Veterans Benefits Management System paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran was scheduled to appear for a videoconference hearing at the RO in February 2013; however, he failed to report for that hearing. As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d) (2013). FINDINGS OF FACT 1. The Veteran's current left knee disorder did not manifest in service, arthritis did not manifest within one year of service, and a left knee disorder is unrelated to service, to include muscular strain following lifting injuries. 2. The Veteran's current low back disability did not manifest in service, arthritis did not manifest within the one year of service, and a low back disorder is unrelated to service, to include in-service low back strain that was acute and resolved. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A left knee disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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). The April 2006 VCAA letter explained what evidence was necessary to substantiate claims of service connection. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The claims were initially adjudicated in June 2006. In addition, a June 2008 VCAA notice letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO sent the second notice letter after initially deciding the Veteran's claims. It is thus untimely. The RO later cured this timing defect, however, by readjudicating these claims in a Supplemental Statement of the Case issued in December 2008. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified VA treatment records. In addition, the Veteran underwent VA examinations in August 2013 to obtain medical evidence as to the nature and likely etiology of the claimed disabilities. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2013 VA examination reports provide a detailed review of the Veteran's claims folder including his lay statements and evidentiary submissions. The examination report is adequate for the purpose of adjudicating the Veteran's claim. Since the Veteran was provided with two examinations that addressed his disabilities and complied with all of the instructions contained in the Board's June 2013 remand, no additional remand is required. Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board finds that VA has complied with the VCAA notification and assistance requirements. The claim of service connection is ready to be considered on the merits. II. Law & Regulation Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service 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 for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2013). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Knee Disorder During service, the Veteran was seen for left knee complaints. In September 1987, he reported that he hit his knee on an object. He was treated at the ER and given 72 hours in quarters. A September 1987 radiologic consultation note indicates left knee suprapatellar soft tissue swelling is the only abnormality demonstrated. An October 1987 note indicates rule out medial meniscus tear, probably mild strain. In October 1987 an arthroscopy of the left knee was performed. The Veteran was thought to have a condyle fracture, but no pathology was found. In August 1981, the Veteran complained of left knee pain after playing football. The assessment was muscle soreness. A report of medical examination upon separation shows that clinical evaluation of the lower extremities was normal. In a February 1995 report of medical history, the Veteran reported a trick or locked knee, but the notation indicated that it was his right knee that was painful. Following discharge, an October 1995 VA orthopedic consultation sheet initially identifies the left knee as the reason for request. However, the consultation report addresses the history and complaints regarding the right knee and not the left knee. In a March 2006 VA examination, the Veteran was diagnosed with early osteoarthritis of the left knee. A December 2007 VA treatment note shows oblique tear of the posterior horn of the medial meniscus and partial tear of the anterior cruciate ligament of the left knee. An August 2008 VA treatment note shows the left knee was normal other than complaints of pain. In February 2010, P.M.P., M.D, noted that the Veteran was suffering from bilateral knee pain for over 20 years. Dr. P.M.P. stated that the Veteran underwent arthroscopic knee surgeries to both knees over 10 years ago, and subsequently received multiple conservative treatment modalities. In a February 2010 lay statement, E.W. stated that the Veteran is in constant pain from injuries to his back and knees due to being in the Army. In a July 2010 VA physical therapy initial evaluation, the Veteran reported pain in the bilateral knees that had been present since approximately 1995. In a private treatment record submitted in April 2011, T.B., M.D. diagnosed chronic back and knee pain. The diagnosis was based on clinical findings of an MRI that showed bilateral degenerative joint disease and meniscal tears in the knees. In a July 2012 VA examination, the Veteran had flexion to 140 degrees and extension to 0 degrees in the left knee. Although the Veteran reported pain on movement, the examiner noted there was no objective evidence of painful motion. The Veteran was afforded an August 2013 VA examination. Following a review of the file and physical examination, the examiner diagnosed mild, degenerative changes of the left knee. The examiner opined that the claimed condition was less likely as not incurred in or cause by the claimed in-service injury, event, or illness. The examiner stated that the service treatment records show the Veteran injured his left knee in 1987 and underwent exploratory knee arthroscopy because the physicians thought he had a chondral fracture. The arthroscopy was negative and no pathology was found. The examiner noted there were records of an injury to the right knee in-service, but there were no records of any left knee injury or complaints at the time. The examiner indicated the misunderstanding comes from a consultation sheet for orthopedics that lists the left knee as the painful knee while the consultation actually reviewed the history for the right knee and provided an examination for the right knee. Finally, the examiner reasoned that the left knee symptoms are not related to service and the complaints are from 8 to 10 years ago. In the present case, the August 2013 VA examination diagnosed mild degenerative changes of the left knee. As such, the Veteran has a current disability. However, given the evidence of record, the Board finds that the weight of the evidence is against the claim for service connection for this disability. Although the Veteran voiced complaints about the left knee during service, an October 1987 arthroscopy showed no pathology. In addition, he voiced no complaints at discharge and the lower extremities were normal on examination. None of the medical evidence supports a finding of a relationship between the Veteran's service and his left knee disability. The only medical opinion of record is that of the August 2013 VA examiner, who had a thorough review of the evidence and states that there is no relationship between the Veteran's left knee disability and his period of service. For the reasons stated below, the Board finds that this opinion is more probative than the lay opinions of record. The Board has considered the Veteran's statements to the effect that his left knee problems first manifest in service, and that he has experienced these symptoms continuously since service. The Veteran is competent to report his experiences in service and to state that he experiences residual symptoms, including knee pain, but these statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this case, the Board finds the other evidence of record more probative. The separation examination report was normal with regard to the lower extremities, and there were no complaints for many years after. In fact, an October 1995 VA orthopedic consult sheet shows the Veteran expressed symptoms related to his right knee just after service and not his left knee. The record does not document any chronic left knee disability until March 2006, over 10 years after service. To the extent the Veteran and E.W. contend that his current left knee disability is related to service, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In any event, the probative value of these general assertions in this regard is outweighed by the probative value of the specific, reasoned opinion of the physician who performed the August 2013 VA examination. As the Veteran has a diagnosis of degenerative changes, the Board carefully considered whether service connection was warranted under a presumptive basis. 38 C.F.R. § 3.309. The evidence of record also reflects that there was neither a diagnosis of arthritis within the one year appeal period or symptoms that were early manifestations of arthritis. See 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). While there was treatment for left knee symptomatology during service, x-rays showed no evidence of arthritis. Therefore, characteristic manifestations sufficient to identify the disease entity of arthritis were not shown during or within one year of separation from service. As such, despite the Veteran's reports of continuity of symptomatology, service connection is not warranted under the provisions of 38 C.F.R. § 3.303(b). Therefore, entitlement to service connection for a left knee disability is not warranted on a presumptive basis. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a left knee disability. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Low Back Disorder Service treatment records indicate the Veteran complained of low back pain and was treated for a low back strain following multiple lifting injuries. The Veteran was treated in November 1981 following a lifting injury and diagnosed with low back pain due to strain. He was prescribed a muscle relaxer, bed rest, and heat. In November 1982, the Veteran complained of low back pain after lifting a heavy cable and he was diagnosed with a low back strain. In November 1986, the Veteran was treated for muscular strain. On his February 1995 report of medical history, the Veteran reported low back pain, which was noted to be chronic. On examination, the spine was normal. A March 2008 radiology report shows sclerosis at L5-S1 but an otherwise normal lumbosacral spine. A June 2008 radiology report shows the same. Upon examination, the examiner stated that pain seemed to be secondary to pelvic obliquity and sacroiliac joint dysfunction. A May 2008 VA treatment record notes the Veteran had back pain after a fall. In a June 2008 VA treatment note, the Veteran reported a history of back pain since an injury in service. The Veteran states that pain worsened after a fall when his left knee gave out. In February 2010, P.M.P., M.D, noted that the Veteran had been suffering from low back pain with prolong sitting, standing, or walking. The Veteran was afforded a VA examination in August 2013. Following a review of the claims file and a physical examination, the examiner diagnosed mild degenerative changes of the posterior lumbar elements. The examiner opined that the claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the service treatment records show a few episodes of back strain due to heavy lifting that resolved within a few days with NSAIDS and relative rest. He further noted that there is no documentation of any back pain until the last ten years which is consistent with the age-related changes seen on imaging. She finally noted that the muscle strains were soft tissue injuries that healed without long term impairment. Based on the foregoing, the Board finds that the Veteran's claim must be denied. The Veteran's service treatment records reflect that he sought treatment for back pain following lifting injuries in November 1981 and November 1982 that were diagnosed as strains. The spine and musculoskeletal system were evaluated as normal at discharge from active duty in March 1995. In this case, the Board finds that the August 2013 VA examiner's opinion is highly probative. In so finding, the Board points out that the August 2013 VA examiner opinion is supported by rationale and is consistent with the medical evidence of record. The VA examiner based her opinion on the entirety of the Veteran's service treatment records as well as post-service treatment records. The Board notes that the only medical opinion on the question of whether there exists a nexus between the Veteran's current back disability and service weighs against the claim. Because the VA examiner has knowledge, experience, and education that the Veteran, as a layperson, is not shown to have, the examiner's opinion is more probative than the Veteran's on the matter of when he has a currently diagnosed low back disorder that is related to his service. The Board has also considered the Veteran's written statements, as well as those statements from E.W., to the effect that his back problems first manifest in service with symptoms of back pain continuously since service. The Veteran is competent to testify as to his observations, but this testimony must be weighed against the evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran has alleged continuity of symptomatology of back pain since separation from service. However, arthritis of the spine is not noted in the service records. Furthermore, the Board finds that characteristic manifestations sufficient to identify the disease entity of arthritis of the spine is not shown in service. The Veteran certainly complained of back pain at that time. However, a September 1983 x-ray revealed mild thoracic spine scoliosis but no bony abnormalities seen. There is no other evidence suggesting that arthritis was diagnosed during service or within one year of service or that it manifested to a compensable degree within that time. As such, the Veteran's statements regarding continuity of symptomatology are irrelevant, because entitlement to service connection cannot be granted under 38 C.F.R. § 3.303(b). While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service may be granted. The benefit of the doubt rule is not for application as there is no reliable evidence of a nexus or evidence of continuous symptoms as to arthritis. The preponderance of the evidence is against the claim, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a low back disability is denied. ORDER Service connection for a left knee disorder is denied. Service connection for a low back disorder is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs