Citation Nr: 1340437	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  07-07 704	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a left knee disorder, including as secondary to the service-connected residuals of a right knee injury with osteoarthritis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from July 1986 to December 1986 and from September 2002 to May 2003.  He had additional military reserve service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).  In October 2008, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge.  A copy of the transcript of that hearing is of record.  The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested.  See 38 C.F.R. § 3.103(c) (2012).  The Board remanded the case for additional development in December 2008, August 2009, April 2011, and December 2012.  A medical opinion was obtained in July 2013 under the provisions of 38 C.F.R. § 20.901(a) (2012).  The Veteran and his representative were provided a copy of the opinion and allowed the requisite amount of time for a response.  38 C.F.R. § 20.903 (2012).  


FINDING OF FACT

The preponderance of the evidence of record reflects that a left knee disability did not have its onset during military service, that arthritis was not manifest within the initial post-service year, that arthritis pre-existed a second period of military service, and that a left knee disability is not otherwise etiologically related an event, injury, or disease during military service nor has it been caused or aggravated by a service-connected disability. 



CONCLUSION OF LAW

The criteria to establish service connection for a left knee disability, to include as secondary to a right knee disability, are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 U.S.C.A. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310, 4.9 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.  

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  None is found by the Board.  The Veteran was notified via letters in December 2005 and July 2006 of the criteria for establishing service connection on a direct incurrence basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He was notified of how VA determines disability ratings and effective dates if service connection is awarded in July 2006.  This letter predated the initial adjudication by the RO in September 2006. 

With respect to the secondary aspect of the Veteran's service connection claim, the Board notes that the above-referenced VCAA letter failed to address such theory of entitlement.  This being the case, the VCAA notice as relevant to the secondary aspect of the Veteran's claim was defective.  The Board has considered whether this deficiency in the VCAA notice resulted in prejudicial error to the Veteran.  The evidence of record reflects that a reasonable person could have been expected to understand what was needed to support the secondary aspect of the Veteran's claim based on notice that was provided to him during the course of his appeal.  In fact, he raised this matter at his October 2008 hearing and the Board addressed the applicable law specifically in the December 2012 remand.  A March 2013 Supplemental Statement of the Case (SSOC) readjudicated the appeal with consideration of the applicable law.  Thereafter, the Veteran's representative indicated that they had received the above-cited SSOC and did not have any additional evidence to submit in support of the appeal.  (See Waiver of 30 Day Waiting Period, signed by the Veteran's representative on April 1, 2013.) 

For the foregoing reasons, the Board finds that VA's failure to provide the Veteran with adequate VCAA notice with respect to the secondary aspect of his claim did not affect the essential fairness of the adjudication of the claim and, therefore, such error is harmless.  Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1).  

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim decided herein.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained the Veteran's available service treatment records (STRs) and VA treatment and examination records.  These VA records have been associated with the Veteran's physical claims files.  The RO has also obtained all identified private treatment records. 

In its remand directives, the Board requested medical opinion to address specific questions pertaining to any diagnosed left knee disorder.  The medical opinions obtained have addressed these question, such that the requested development has been completed.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

In addition, the Veteran was provided an opportunity to set forth his contentions during the October 2008 hearing before the undersigned Acting Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  During the hearing, the undersigned Acting Veterans Law Judge identified the single issue on appeal.  Also, information was solicited regarding the nature of his argument and the Acting Veterans Law Judge clarified the evidence necessary to establish entitlement the benefit sought.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted.  As such, the Board finds that, consistent with Bryant, the undersigned Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

Finally, the Board, on its own motion, sought a medical opinion as to the secondary service connection aspect of the Veteran's left patella tendon injury claim in June 2013.  A copy of the July 2013 report obtained is of record.  Although in a September 2013 response the Veteran's representative asserted that the July 2013 opinion "incorrectly limited itself" and failed to consider additional stresses and altered gait, the Board finds the provided opinion adequately addressed the specific question presented.  It is significant to note that the Board's June 2013 request specifically limited the requested opinion to the etiology of the Veteran's patella tendon injury.  

The Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to the claim for service connection for a left knee disorder, to include on a secondary basis.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this 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. 18 (2002).  Therefore, the Board finds that VA has complied with the duty-to-assist requirements.  38 U.S.C.A. § 5103A.

II. Laws and Regulations
Service Connection-General Criteria

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, 1131; 38 C.F.R. § 3.303(a).  Congenital and developmental defects, however, are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits.  38 C.F.R. §§ 3.303, 4.9.  

Claims involving congenital and developmental defects, therefore, require more than an increase in severity during service in order to warrant a grant of service connection.  The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability.  VA's General Counsel has held that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations.  A congenital or developmental defect, on the other hand, under the provisions of 38 C.F.R. § 3.303(c), is not service connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service.  VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)).

Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes.  38 C.F.R. § 3.6(c)(1) (2012).  The Court has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service.  See Smith v. Shinseki, 24 Vet. App. 40 (2010).  

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995).  Effective October 10, 2006, 38 C.F.R. § 3.310(b) was amended to codify the holding in Allen.  The amended regulation, however, contains a more stringent standard for establishing secondary service connection than the holding in Allen in that the medical evidence must establish a pre-aggravation baseline level of severity of the nonservice- connected disability before aggravation will be conceded.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The less stringent pre-amendment standard may be applied for claims filed before October 10, 2006.  The Veteran's claim in this case was received in November 2005.

A veteran is presumed in sound condition except for defects noted when examined and accepted for service.  Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304; VAOPGCPREC 3-2003.  A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2008).  The presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of that examination.  Only conditions recorded in examination reports are noted and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of those conditions.  Crowe v. Brown, 7 Vet. App. 238 (1994).

For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  However, this presumption is rebuttable by probative evidence to the contrary.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 

The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

III. Analysis

The preponderance of the evidence of record reflects that a left knee disability did not have its onset during military service, that arthritis was not manifest within the initial post-service year, that arthritis pre-existed a second period of military service, and that a left knee disability is not otherwise etiologically related an event, injury, or disease during military service nor has it been caused or aggravated by a service-connected disability.  The medical opinions obtained by VA in this case are persuasive and based upon adequate examination, review of the record, and consideration of the Veteran's claims.  The presumptions of soundness and aggravation are not applicable to any claim associated with the Veteran's ACDUTRA or INACDUTRA service and the presumption of soundness is also not applicable to his period of service from September 2002 to May 2003 because he is not shown to have had an induction medical examination prior to service entry at that time.  The preponderance of the evidence also shows the Veteran's patella alta condition is a congenital defect that was not permanently aggravated by service.  In fact, the July 2013 VA examiner found the evidence was clear and unmistakable that this defect pre-existed a second period of military service and was not aggravated by the Veteran's military service.

The Veteran asserted in his November 2005 application for VA benefits that he injured his knees on September 18, 2005, while attending a retirement ceremony at his reserve unit.  At his October 2008 hearing he also asserted that his left knee disorder had been incurred as a result of altering his gait and weight bearing due to his service-connected right knee disorder, to include while he was on crutches for his right knee disability in September 2005.  He claimed that he did not injure his left knee during, or prior to any period of military service, but that it is secondary to, or, in the alternative, has been aggravated by his service-connected right knee disorder.  (See, October 2008 hearing transcript (T.) at pages (pgs.) 4, 10).  

The Veteran's service treatment records show that upon reserve service enlistment examination in March 1986 his lower extremities were found to be normal.  An April 1994 report of medical examination noted he had a well-healed laceration on the left knee secondary to trauma.  No additional comments were provided.  The record does not include a report of a medical examination associated with the Veteran's period of service from September 2002 to May 2003.  Private medical records dated in March 2002 included diagnoses of osteoarthritis to the knees.  VA treatment records dated in April 2006 noted X-ray studies of the left knee in September 2005 revealed minor degenerative joint disease and calcification at the superior insertion of the infrapatellar ligament.  It was noted the left knee was mildly swollen and tender to palpation at the medial aspect.  A December 2006 magnetic resonance imaging scan revealed a large enthesophyte at the inferior surface of the patella at the attachment site of the patellar tendon.  There was a questionable asymmetrical patellar position with the left slightly higher than the right.  

VA examinations in March 2009 and November 2009 included left knee diagnoses of (i) moderate medial and patellofemoral compartment degenerative joint disease; (ii) evidence of a prior patella tendon injury, chronic with high riding patella; (iii) left knee medial compartment osteoarthritis, and, (iv) left knee patellofemoral arthritis.  In regards to the diagnosed degenerative joint disease of the left knee, the March 2009 examiner opined that it was a chronic disorder and that it was not due to an acute left knee injury.  Both the March and November 2009 VA examiners agreed that the Veteran's degenerative joint disease of the left knee was less likely than not directly related to the use of crutches or to the service-connected right knee disorder.  The March 2009 examiner stated that the above-cited left knee condition was multi-factorial and had genetic and heredity components, especially since the Veteran had denied sustaining any trauma to the left knee.  The March 2009 examiner further opined that the degenerative joint disease of the left knee was not directly related to military service.  Moreover, the November 2009 VA examiner opined that even if it were taken for granted that the Veteran's left knee pain had begun when he used using crutches for his service-connected right knee disorder, it was less likely than not that the crutches would be the sole cause of degenerative joint disease of the left knee.  

In regards to the diagnosed prior left patella tendon injury, chronic with a high-riding patella, the March 2009 examiner opined that it had preexisted military service.  The March 2009 examiner further stated that it was complex as to whether or not the left knee condition was directly related to active military service.  Given the presence of an old scar in this area, the March 2009 VA examiner stated that he was unable to tell if there was a partial tear of the patella tendon at one point, or if the Veteran had chronic tendonitis with an elongated tendon.  The November 2009 VA examiner opined that in regards to the etiology of the Veteran's high-riding patella, it was less likely than not that it would result from temporary favoring of the left knee by the use of the crutches.  The November 2009 VA examiner further stated that there was nothing in the record to suggest acute tendonitis at that time.  The November 2009 VA examiner stated that it would be impossible to establish the exact etiology of the lengthened patella without sequential X-rays dating prior to, during, and after military service without resorting to mere speculation.  

In July 2013, a VA expert medical opinion was obtained from a board-certified orthopedic surgeon.  The physician noted his opinion was based upon his experienced in the field, a review of the record, and an extensive review of the orthopedic literature regarding patella tendon injury, chronic with a high riding patella, also known as patella alta.  He found that the Veteran's condition clearly and unmistakably pre-existed his second period of service in September 2002 and that his patella alta disorder was a congenital disorder that would have predisposed him to arthritic change of the patella femoral aspect of the knee joint and result in anterior knee pain during the course of his lifetime.  It was further noted that at the end of his second period of service, however, the Veteran had no complaints of left knee issues or pain.  The physician found the evidence was undebateable that he did not aggravate this pre-existing condition during his second tour of service.  He also found that the left knee pain that started subsequent to a right knee injury in September 2005 and had required the use of crutches for several weeks was at most a temporary aggravation of the pre-existing condition and certainly did not result in a permanent worsening.  The Veteran's onset of left knee pain was considered to be a result of the expected progression of his arthritis and his complaints would have occurred in the absence of military service.  

While the Veteran is competent to provide evidence as to observations and some medical matters, his statements are, at most, conclusory assertions of a nexus between his present left knee disability and service or a service-connected disability.  See Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  As questions of a diagnosis of arthritis and/or patella alta and any relationship to service or a service-connected disability are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide, the Veteran's statements are insufficient to establish service connection.  See Davidson, 581 F.3d 1313.  The Veteran is not shown to have an acquired medical expertise in these matters and his statements as to etiology are not competent evidence.  The Board finds the medical opinions obtained in this case are persuasive that a left knee disability was not incurred or aggravated during a period of military service, including ACDUTRA or INACDUTRA service, and that any present left knee disability was neither caused nor permanently aggravated by a service-connected disability.  

The preponderance of the evidence is against the claim for entitlement to service connection.  Therefore, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a left knee disorder, including as secondary to the service-connected residuals of a right knee injury with osteoarthritis, is denied.



____________________________________________
CAROLE R. KAMMEL
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs