Citation Nr: 1400194 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 09-43 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Meryl Anne Spat, Attorney at Law WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran had active military service from February 1971 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision decided in February 2009 and issued in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the Veteran's claims file has been transferred to the RO in Hartford, Connecticut. In January 2011, the Veteran testified before a Decision Review Officer (DRO) at the RO and, in November 2012, he testified before the undersigned Veterans Law Judge sitting at the RO. Copies of both transcripts are of record. In April 2013, the Board reopened the Veteran's claims of entitlement to service connection for degenerative arthritis of the right and left knees on the basis that new and material evidence had been received, and remanded the claims of entitlement to service connection for right and left knee disorders for further development. The case now returns for further appellate review. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals a copy of the transcript from the Veteran's November 2012 Board hearing as well as VA treatment records dated through July 2013, which were considered by the agency of original jurisdiction (AOJ) in the October 2013 supplemental statement of the case. The remainder of the documents in the Virtual VA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In a September 2013 VA Form 9, the Veteran has expressed the intent to reopen his previously denied claims of entitlement to service connection for a bilateral shoulder injury, low back disorder, heart disorder, and posttraumatic stress disorder, which were previously denied in an August 2007 rating decision. The claims to reopen have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. 2. A left knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a December 2008 letter, sent prior to the issuance of the March 2009 rating decision on appeal, advised him of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the December 2008 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service VA and private medical records, including Social Security Administration (SSA) records, are of record and were reviewed by both the AOJ and the Board in connection with the Veteran's claims. During his November 2012 Board hearing, the Veteran stated he had received private treatment for his knees by a private physician, Dr. McCalester, and that the physician had clearly told him he would not provide a medical opinion. See Board Hearing Transcript at p. 12-13, 16. The Veteran also indicated private treatment by a rheumatologist for his chronic knee pain in a February 2013 VA treatment note; it is unclear whether he was referring to Dr. McCalester or a different physician. Pursuant to the Board's April 2013 remand, the AOJ requested that the Veteran submit records from Dr. McCalester, or authorize VA to obtain such records, and to identify/authorize release of any other private medical treatment the Veteran had received. In a July 2013 letter, the Veteran indicated he had already submitted records from Dr. McCalester; however, no such records are in the Veteran's claims file. He did not identify any other outstanding records or provide an authorization form for Dr. McCalester, or any other treatment provider, so as to allow VA to obtain such records. The Board finds it has satisfied its duty to assist in requesting the records. Regarding the records from Dr. McCalester, such records are not material to the claim because, as described below, the Veteran's claims fail on a lack of a positive medical opinion linking his bilateral knee disability to service, and the Veteran has specifically stated that Dr. McCalester refused to offer such an opinion. Furthermore, to the extent that the Veteran did not authorize VA to obtain any outstanding private treatment records, the Board emphasizes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran also offered testimony before a DRO at an RO hearing in January 2011 and the undersigned Veterans Law Judge at a Board hearing in November 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the 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. Here, during the January 2011 and November 2012 hearings, the DRO and the undersigned Veterans Law Judge noted the issues on appeal. Also, information was solicited regarding the Veteran's in-service experiences he alleges resulted in his bilateral knee disorder, the type and onset of symptoms, and his contention that his military service caused his bilateral knee disorder. Therefore, not only were the issues "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. As the Board hearing discussion raised the possibility that there were outstanding private and VA treatment records available, the Board remanded the issue in April 2013 in order to obtain such records. Additionally, while on remand, the Veteran was afforded a VA examination in August 2013 so as to determine the nature and etiology of his bilateral knee disorder. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claims decided herein. As such, the Board finds that, consistent with Bryant, the DRO and undersigned 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 claims based on the current record. As noted in the preceding paragraph, in April 2013, the Board remanded the case for additional development, to include requesting additional treatment records and affording the Veteran a VA examination in order to determine the current nature and etiology of his bilateral knee disorder, which was accomplished in August 2013. The Board finds that the opinion of record is adequate to decide the issues as it is predicated on a review of the claims file, which includes the Veteran's statements, his service treatment records, and post-service treatment records. Additionally, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Therefore, the Board finds that the opinion is adequate to decide the Veteran's case as the examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. 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"). Additionally, the Board finds that the AOJ has substantially complied with the April 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis At his hearings on appeal and in documents of record, the Veteran alleges that he has a current bilateral knee disorder as a result of scraping up wax off of floors and pulling weeds while in service. Therefore, he contends that service connection for such disorder is warranted. 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran's service treatment records document complaints of bilateral knee pain. Specifically, the Veteran was seen in March 1971 with pain in both patella resulting in a diagnosis of mild Osgood Schlatter's disease, and in May 1972 with complaints of sore knees for "some time," at which time the examination and X-rays were within normal limits. The diagnosis was no significant knee problem. During his August 1972 separation examination, he reported a positive medical history of swollen or painful joints, but denied arthritis and "trick" or locked knee. The examiner noted that the Veteran reported experiencing pain and swelling in both knees for the past 11/2 years, but that X-rays taken in April 1972 showed no disease, he had full range of motion, and had no current symptoms. Post-service, the first documentation of bilateral knee pain occurs in a March 1999 private treatment note. In 2002, the Veteran was first diagnosed with bilateral degenerative joint disease and he also underwent left knee surgery in 2002. A December 2006 VA treatment note reports that the Veteran has a medical history of bilateral arthritis of the knees for the past ten years. In another December 2006 VA physical therapy note, it was noted that the Veteran was a runner for many years, and that he was involved in a car accident in 2004 and sustained a minor injury to his left knee from the dashboard. Additionally, in the Veteran's September 2004 application for Social Security Disability Insurance, he indicated he had had "bad knees since 1998." The Veteran was afforded a VA examination in February 2009 in order to determine the current nature and etiology of his bilateral knee disorder. In this regard, the examiner diagnosed degenerative joint disease of both knees and opined that such was not caused by or a result of the Veteran's military service. However, because he did not specifically consider whether the Veteran's in-service duties of removing wax from floors and pulling weeds resulted in his bilateral knee disorders, or consider the Veteran's allegations that he experienced continuity of knee symptomatology since service, the Board requested another opinion. Accordingly, in August 2013, the Veteran again underwent a VA examination. After examining and interviewing the Veteran, as well as reviewing the claims file, the examiner found that the Veteran's bilateral knee disorder less likely began during his service or is otherwise etiologically related to such service, to include his in-service duties that required him to clean waxed floors and pull weeds, as well as his in-service treatment and complaints referable to bilateral knees. She explained that: The Veteran did not have any documented [degenerative joint disease] during service time on X-rays or any objective abnormalities of knees [bilaterally]. Veteran has no record of consistent continuity of care following service to show there has been chronic [symptoms] for [bilateral] knees. Veteran does not have any evidence of documented diagnosis for knees until 1999, which is 27 years post service. It is less likely that the Veteran's in-service duties would cause [degenerative joint disease], the Veteran performed the duties for one year approximately and that is less likely long enough to cause [degenerative joint disease] from repetitive use or mechanical stress. The examiner further found that the Veteran less likely had arthritis of left or right knee or meniscus tear left knee within one of his service separation in August 1972. She reasoned: The X-rays of [bilateral] knees during service time did not show any abnormality. There are no medical records or imaging to show evidence of arthritis during year following service time. There are no documented complaints consistent with left knee medial meniscus tear such as joint locking, effusion, instability during service time or one year following service time. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his active duty service discharge in August 1972. In addition, while the Veteran has alleged experiencing knee pain in the first year after service, he has not reported that arthritis was present at such time. In this regard, the Veteran alleges his knee pain likely started when he was in the Air Force and had to scrub waxed floors and pull weeds, but stated he feels his arthritis came later. See February 2012 VA treatment note. He indicated he self-medicated with drugstore products, until he began seeing VA physicians in approximately 2002. The Veteran also testified he did not know he could file for VA disability benefits until 2000; however, the record reflects that he filed a claim in August 1995 for dental treatment, on the basis of an alleged in-service dental injury. See Board Hearing Transcript at p. 11-12. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, supra. In the instant case, the Board finds such statements of continuity of symptomatology to lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest and, therefore, accords no probative weight to such contentions. Consequently, in light of these inconsistent statements, the Board finds the Veteran's statements regarding a continuity of symptomatology to not be credible. Therefore, presumptive service connection is not warranted for arthritis of the right or left knee, to include on the basis of continuity of symptomatology. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claims must also be denied on a direct basis. First, while service treatment records show complaints of knee pain and swelling, the Veteran's August 1972 separation examination showed normal bilateral knees. Indeed, X-rays performed in the months leading up to the Veteran's separation showed no disease. Moreover, the August 2013 VA examiner opined that the Veteran's bilateral knee disorder was not related to his military service, and specifically considered his contentions that kneeling to clean floors and pull weeds was the cause. As the examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two, the Board accords great probative weight to her opinion. See Nieves-Rodriguez, supra; Stefl, supra. While the Veteran contends that his bilateral degenerative arthritis of the knees is related to military service, the Board accords his statements regarding the etiology of his disorders little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of such disorders of the knees involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, based on the foregoing, the Board finds that service connection for right and left knee disorders is not warranted on a presumptive or direct basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right and left knee disorders. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs