Citation Nr: 1343196 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 10-12 394 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral knee disorder, claimed as secondary to traumatic arthritis residual to fracture of the left third metatarsal. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran had active service from August 1965 to January 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2012 rating decision in which the RO denied service connection for a bilateral knee disorder. In January 2011, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in July 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2011. The Board notes that, in addition to the above-noted issue, a claim for a higher rating for traumatic arthritis residual to fracture of the left third metatarsal was certified for appeal. However, the Board finds that this claim is not properly before the Board, and the current appeal is limited to the matter set forth on the title page. The Veteran submitted a March 2010 VA Form 9, Appeal to the Board, in response to a March 2010 SOC denying a disability rating higher than 30 percent for the left foot disability. However, in that VA Form 9, the Veteran stated, "Please note that I understand the schedule of ratings described in the SOC and accept the fact that a rating higher than 30% has to be justified by a complete loss of the use of the foot. I do not believe that I meet that standard nor am I now appealing that decision" (emphasis added). Although the Veteran submitted his statement on a VA Form 9, he indicated that he did not wish to appeal this issue to the Board. Under these circumstances, a claim for higher increased rating for traumatic arthritis residual to fracture of the left third metatarsal is not before the Board for appellate consideration. See 38 U.S.C.A. § 20.202 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA ) folder associated with the Veteran's claim. That folder was reviewed in connection with this claim. As a final preliminary matter, the Board notes that, in a September 2013 statement, the Veteran's representative indicated that the Veteran wished to appeal his 30 percent disability rating for traumatic arthritis, residuals of fracture, left third metatarsal. As noted above, this issue is not before the Board for appellate consideration. Therefore, the representative's statement raises a new claim of entitlement to a higher rating for the left foot disability. However, as this matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ)-here, the RO-it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. There is no evidence or allegation that the current bilateral knee disability had its onset in, or is otherwise medically related to, service, and the only competent, probative opinion evidence on the question of the etiology of the current bilateral knee disability indicates that such disability was not caused or worsened by the Veteran's service-connected traumatic arthritis residual to fracture of the left 3rd metatarsal. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disorder, claimed as secondary to traumatic arthritis residual to fracture of the left 3rd metatarsal, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A July 2010 pre-rating letter provided pertinent notice to the Veteran in connection with his claim for service connection for a bilateral knee disorder. That letter indicated what information and evidence was needed to substantiate the claim for service connection on a secondary basis, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates (in the event service connection is granted), as well as the type of evidence that affects those determinations. Hence, the July 2010 letter meets the VCAA's content and timing of notice requirements. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA treatment records, private treatment records, and VA examination reports. Also of record and considered in connection with the appeal are various written statements provided by the Veteran. The Board finds that no additional RO action to further develop the record in connection with the claim on appeal, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). At the outset, the Board notes that the Veteran does not contend, and the evidence does not indicate, that his bilateral knee disability had its onset during, or as a result of, service. In this regard, service treatment records reflect no complaint, finding, or diagnosis of a knee disability. Rather, in various written statements, the Veteran has expressed his belief that his bilateral knee disability is due to his service-connected traumatic arthritis, residuals of fracture, left third metatarsal. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). However, given the basis for the denial, as noted below, discussion of the amendment is unnecessary. In a March 2010 VA Form 9submitted in response to a rating decision continuing a 30 percent disability rating for traumatic arthritis residual to fracture of the left third metatarsal, the Veteran asserted that his foot disability aggravated his bilateral knee disability. The record includes the report of an October 1997 VA examination conducted in connection with the Veteran's original claim for service connection for a foot disability. No mention was made of any knee disability. The Veteran was provided a September 2010 VA examination to obtain medical opinion as to the etiology of his bilateral knee disability. The examiner noted that she reviewed the Veteran's claims file. During that examination, the Veteran stated that he did not recall the onset of his bilateral knee disability. The examiner found that the Veteran had "[d]egenerative changes [in] both knees a little more marked on the left particular in regard to the tibiofemoral joint in the medical aspect." The examiner diagnosed the Veteran with "[r]ight knee degenerative joint disease found with mild functional limitation" and "[c]hondromalacia left knee w[i]th minimal functional limitation." The examiner was asked to opine on whether the Veteran's bilateral kneed disability was caused by or a result of his service-connected left third metatarsal disability. She determined that the Veteran's bilateral knee degenerative joint disease is not caused by or a result of his service-connected left third metatarsal disability. Her reasoning was that "[t]he fracture was well heel[ed] and the changes that he present[s] are more likely due to multiple microtrauma and also there is no possible connection between the metatarsal bone and the knees." The examiner did not specifically opine on whether there was any aggravation. The Veteran was also provided a February 2013 VA examination, with the same examiner that conducted the September 2010 examination, in connection with his claim for service connection for a bilateral knee disability. The examiner noted that she had reviewed the claims file. She found that the Veteran had degenerative changes of the knees bilaterally, "a little more marked on the left knee in regard to the tibiofemoral joint in the medial aspect." The examiner noted that the Veteran's chronic bilateral knee pain started in 2005, and the pain is worse in the left knee. The examiner found that there were no significant changes in the severity of his knee disability since November 2005. The examiner determined that the Veteran's bilateral knee disorder was not at least as likely as not aggravated beyond its natural progression by the service-connected traumatic arthritis, residuals of fracture, left third metatarsal. The stated rationale was: The veteran has osteoarthritis of bilateral knees L>R. He has an antalgic gait and favors the left leg when ambulating and therefore, one would expect worse arthritis on the right knee. Therefore, the claimed condition of bilateral arthritis is less likely than not (less than 50% probability) aggravated beyond its natural progression by his left foot fracture. The Board notes that the only medical opinions to address the etiology of the Veteran's bilateral knee disability-that of the September 2010 and February 2013 examiner-do not support the claim. Although the examiner did not address the matter of aggravation in the September 2010 opinion, such matter was addressed in the February 2013 opinion. Moreover, the VA examiner offered a clear conclusion with supporting data as well as a reasoned medical explanation as to why the Veteran's bilateral knee disorder was not caused by or aggravated by his service-connected foot disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). Consequently, the Board assigns great probative value to the VA examiner's opinions. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical evidence or opinion that actually supports the claim-i.e., one that even suggests there exists a medical relationship between the Veteran's service-connected foot disorder and his current bilateral knee disorder. Furthermore, as regards any attempt by the Veteran to establish that his bilateral knee disorder was caused by or aggravated by his service-connected foot disorder on the basis of lay assertions, alone, the Board finds that such assertions provide no basis for allowance of the claim. The matter of whether there exists a medical relationship between the Veteran's knee disorder and his service-connected foot disorder is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific matter of whether the Veteran's knee disorder was caused by or is aggravated by his service-connected foot disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Hence, the lay assertions in this regard have no probative value. For all of the foregoing reasons, the Board finds that the claim for secondary service connection for bilateral knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a bilateral knee disorder, claimed as secondary to traumatic arthritis residual to fracture of the left third metatarsal is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs