Citation Nr: 1340559 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 12-16 938 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for bilateral Osgood-Schlatter's Disease. 2. Entitlement to service connection for bilateral Osgood-Schlatter's Disease. 3. Entitlement to service connection for bilateral hip arthritis, to include as secondary to a bilateral knee disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from July 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the RO in Philadelphia, Pennsylvania, and a January 2011 rating decision of the RO in Cleveland, Ohio. Jurisdiction over the Veteran's claims was subsequently transferred to the RO in New York, New York. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claims. A review of the documents in the electronic file reveals that some are non-duplicative of those in the paper claims file, to include evidence of the Veteran's ongoing VA treatment. However, those records were obtained in June 2012 and considered by the RO prior to the issuance of the June 2012 Statement of the Case. FINDINGS OF FACT 1. In its January 1973 rating decision, the RO denied the Veteran's original claim of service connection for Osgood-Shatter's disease on the basis that it was not aggravated beyond its natural progression during service; the Veteran did not appeal from this decision. 2. The evidence received subsequent to the January 1973 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for Osgood-Schlatter's disease. 3. The pre-existing Osgood-Schlatter's disease is not shown to have undergone an increase in severity beyond its natural progression during his period of active service. 4. The Veteran is not shown to have manifested complaints or finding referable to a chronic hips disorder during service or for many years thereafter. 5. The currently demonstrated bilateral hip arthritis is not shown to have been caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the claim of service connection for Osgood-Schlatter's disease. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1100 (2013). 2. The Veteran's pre-existing Osgood-Schlatter's disease is not shown to have been not aggravated beyond its natural progression by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306 (2013). 3. The Veteran's disability manifested by bilateral hip arthritis is not due to disease or injury that was incurred in or aggravated by active service; nor may it be presumed to have been incurred in service; nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable decision to reopen the Veteran's claim of entitlement to service connection for bilateral Osgood-Schlatter's Disease, no harm or prejudice has resulted regardless of whether the notice and assistance requirements have been met in this case. In December 2008, February 2009 and October 2010 correspondence, the RO advised the Veteran of what the evidence must show to establish entitlement to service connection for his claimed disorders and described the types of evidence that the Veteran should submit in support of his claims. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The letter also provided the Veteran notice regarding the evidence and information necessary to establish a disability rating and effective date in accordance with Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board further notes that the Veteran was provided with a copy of the October 2009 and January 2011 rating decisions and the June 2012 statements of the case, which cumulatively included a discussion of the facts of the claims, notification of the bases of the decisions, and a summary of the evidence considered to reach the decisions. Therefore, the Board concludes that the requirements of the notice provisions of VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO obtained the Veteran's VA treatment records, afforded the Veteran with compensation and pension examinations in December 2011, and associated the Veteran's service treatment records with the claims file. To that end, 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 Board finds that the VA examinations obtained in this case were adequate, as they were predicated on a full reading of the medical records in the Veteran's claims file. The examination included the Veteran's subjective complaints about his disabilities and the objective findings concerning those disabilities. The Veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that he or VA needs to obtain. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Law and Analysis The Veteran's current claim involves service connection for Osgood-Schlatter's disease. The RO denied the Veteran's original claim of service connection in January 1973, on the basis that there was no evidence that his disability was aggravated beyond its natural progression during active service. The Veteran did not appeal this decision, and it became final. The Veteran then filed an application to reopen his claim in August 1976. This claim is based upon the same disability as the Veteran's previous claim, which was denied in the January 1973 rating decision that became final. Thus, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented. The Veteran requested to reopen his claim in August 1976. For claims filed before August 29, 2001, an earlier version of 38 C.F.R. § 3.156 is applicable. The earlier regulation defined "new and material evidence" as evidence not previously submitted that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001) (effective prior to August 29, 2001); See Kent v. Nicholson, 20 Vet. App. 1 (2006). If evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of record at the time of the final January 1973 rating decision included the Veteran's service treatment records. Since the January 1973 rating decision, the Veteran and RO supplemented the claims file with his VA treatment records, a letter from the Veteran's doctor, a compensation and pension examination, and the Veteran's own statement. The Veteran's request to reopen his claim is evaluated based on this new evidence. The Board notes that much of the evidence submitted after the January 1973 rating decision was not available at the time of the RO's original decision. The new evidence bears directly and substantially upon the specific matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the claim. To be sure, a doctor wrote in October 2009 that he was treating the Veteran for his knee disabilities that were aggravated by his in-service training. The Board reads this statement as suggesting the Veteran's military training could have also aggravated his Osgood-Schlatter's Disease and finds that it is sufficient to reopen his claim. Accordingly, having determined that new and material evidence has been submitted, the Veteran's claim of service connection for bilateral Osgood-Schlatter's Disease is reopened. Thus, the Board will decide the Veteran's claim on the merits. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). As Osgood-Schlatter's disease was noted on the Veteran's pre-induction physical, the relevant inquiry is whether that disability was aggravated beyond its natural progression by active service. Generally, where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 492 F.3d at 1376-1377. Also, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran argues that he had Osgood-Schlatter's disease before service, but the rigors of Army life aggravated this condition. More specifically, he asserts that he was forced to march and perform vigorous physical activity that made his condition worse when it should have resolved as a youth. The Board initially observes that the VA treatment records dated from January 1, 1971, to June 11, 1987, and from November 17, 1992, to December 31, 1995, are unavailable. The RO informed the Veteran of the lack of medical records in May 2011, but the Veteran did not provide a copy of the records or provide any indication of what type of treatment he received during that period. The rest of the Veteran's VA treatment records indicate he had been diagnosed with Osgood-Schlatter's Disease. As mentioned previously, one VA doctor wrote a letter in October 2009 that stated that he had treated the Veteran for "arthritis aggravated by [his] in-service training of his Osgood-Schlatter's Disease." Although this statement was sufficient to reopen the Veteran's claim, the Board affords it no probative value because it does not specifically state that the Veteran's Osgood-Schlatter's Disease was aggravated beyond its natural progression by his active military service. Furthermore, the statement fails to provide a rationale or discuss any of the evidence the doctor might have considered when writing the letter. The Veteran then presented for a VA examination in December 2011. After examining the Veteran and describing his history and symptomatology, the examiner opined that the Osgood-Schlatter's disease was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. To support this opinion, the VA examiner stated that there was evidence of Osgood-Schlatter's disease when the Veteran entered the military that was aggravated by exertional activity to the point that he was placed on a profile in 1969. The examiner then noted that there were no medical notes until 2005 when the Veteran reported having knee and hip pain. At the time of the examination, the X-ray studies showed mild degenerative changes of the knees that would be expected for the Veteran's age group. Thus, the examiner concluded that there was no evidence that military service aggravated the Osgood-Schlatter's disease because the disease had its natural course and resolved after the Veteran's teenage years. She further stated that there is no connection between arthritis of the knee and Osgood-Schlatter's disease because it was a disease of the anterior tibial tubercle and not the joints. Here, the Board observes that the Veteran did complain of bilateral knee pain in October 1992, but he attributed the pain to working construction. The X-ray studies were negative. An examination found tenderness, bilaterally, in the anteromedial region of both knees, but no effusion/crepitus or ligamentous instability. Because the Veteran was complaining of joint pain in 1992 and not pain of the anterior tibial tubercle, the examiner's opinion is adequate as her rationale rules out joint pain as evidence of aggravation of Osgood-Schlatter's disease. Therefore, the Board affords the December 2011 VA examiner's opinion great probative value. The Veteran is not competent to provide an opinion regarding aggravation of his knee disability in-service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case is outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the symptoms of knee pain, any actual evidence of a knee disability's aggravation beyond its natural progression requires medical expertise because it involves a complex medical matter. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). To the extent that the Veteran himself believes that his bilateral knee disability was aggravated beyond its natural progression by his active military service, he is not shown to possess any specialized training in the medical field. In any event, the Board concludes that the medical evidence is of greater probative value than the Veteran's lay statements. In light of the foregoing, the Board finds that the evidence does not show that the Veteran's Osgood-Schlatter's disease was aggravated beyond its natural progression by his active service. In this regard, the Board observes that the VA examiner found that active military service clearly and unmistakably did not aggravate the Osgood-Schlatter's disease beyond its natural progression, and the record does not contain any competent medical opinion stating that the Veteran's active military service aggravated his Osgood-Schlatter's disease beyond its natural progression. Therefore, the Board must find that claim of service connection for Osgood-Schlatter's Disease must be denied. To the extent that the Veteran's claim for bilateral hip arthritis is one of secondary service connection, the Board notes that he is not service connected for a pertinent knee disability. The Board notes that the Veteran currently is shown to have bilateral degenerative changes of each hip. However, the Veteran did not manifest complaints or findings referable to either hip in service or for many years thereafter. Furthermore, none of the Veteran's treatment records indicate that there is any connection between his hip arthritis and his period of active military service. The Veteran in this regard told his VA doctor in October 2005 that his hip pain had had an insidious onset about six years earlier. The Veteran underwent a VA examination in December 2011 when he told that examiner that he had experienced hip pain for only 10 years. Although the examiner did not opine whether the Veteran's active military service caused his bilateral hip arthritis, the Board observes that such an opinion is not necessary because there is no evidence of any hip injury in service. Therefore, the Board finds that there is no showing of a hip injury or related disability in service or during the one year presumptive period thereafter. In light of this finding, service connection for bilateral hip arthritis on the basis of incurrence must be denied. In reaching these conclusions, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claims, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has been received to reopen the claim of service connection for bilateral Osgood-Schlatter's disease, the appeal to his extent is allowed. Service connection for bilateral Osgood-Schlatter's disease is denied. Service connection for bilateral hip arthritis, to include as secondary to a bilateral knee disability, is denied. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs