Citation Nr: 1415238 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 07-18 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability other than chondromalacia. 2. Entitlement to service connection for a claimed left knee disability, to include as secondary to any service-connected right knee disability. 3. Entitlement to service connection for a claimed lumbar spine disability, to include as secondary to any service-connected right knee disability. 4. Entitlement to an initial rating in excess of 10 percent for service-connected chondromalacia of the right patella. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A hearing before the undersigned Acting Veterans Law Judge (AVLJ) was held at the RO in August 2011. In December 2011, the Board referred this case for expert medical opinion by a physician within the Veterans Health Administration (VHA). The opinion received, dated January 2012, was provided to the Veteran for his review and opportunity to submit additional evidence and/or argument. In a statement received in April 2012, the Veteran submitted additional evidence and waived his right for RO review of this evidence in the first instance. In May 2012, the Board issued a decision that, in part, reopened and granted a claim of entitlement to service connection for chondromalacia of the right patella. The Board decision also denied entitlement to service connection for a right knee disability other than chondromalacia, a claimed left knee disability, and a claimed lumbar spine disability. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's May 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ that conducted the August 2011 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place. Thus, the May 2012 Board decision was vacated in March 2014 and the case is now before the Board. Notably, the March 2014 vacated decision does not affect the award of service connection for chondromalacia of the right patella. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to an initial rating in excess of 10 percent for service-connected chondromalacia of the right patella are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right knee disabilities other than chondromalacia first manifested many years after service, are unrelated to service, and are not caused or aggravated beyond the normal progress of the disorder by service-connected chondromalacia. 2. The Veteran's current left knee disability first manifested many years after service, is unrelated to service, and is not caused or aggravated beyond the normal progress of the disorder by service-connected right knee chondromalacia. 3. The Veteran's current left knee disability first manifested many years after service, is unrelated to service, and is not caused or aggravated beyond the normal progress of the disorder by service-connected right knee chondromalacia. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disability other than chondromalacia have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 3. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 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); C.F.R. § 3.159(b)(1). 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). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran filed his service connection claims in September 2005. A pre-adjudicatory RO letter dated November 2005 advised the Veteran of the types of evidence and/or information deemed necessary to substantiate his claims as well as the relative duty on the part of himself and VA in developing his claims. The Veteran did not receive timely notice of the criteria for establishing the downstream elements of establishing a disability rating and effective date of award. As the claims are denied, there is no prejudice to the Veteran for this notice deficiency. The Board further observes that the Veteran submitted private medical opinions in support of his direct and secondary service connection theories. As such, the Veteran has shown actual knowledge of the evidentiary requirements. The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim(s). 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 his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the instant claims. In this case, the RO has obtained the Veteran's service treatment records which appear complete. There is no allegation of any outstanding military records. The RO has also obtained all relevant VA clinical records, and all private medical records for which the Veteran has both identified and authorized VA to obtain on his behalf. At the hearing in August 2011, the Veteran testified to outstanding private treatment records which he indicated are no longer available. At that time, the Veteran and his representative indicated that there was no reasonable possibility that any additional records could be obtained. The record also reflects that the Veteran is in receipt of an award of disability benefits with the Social Security Administration (SSA). At the hearing in August 2011, the Veteran in consultation with his representative asserted that these records need not be obtained as they would likely not include any relevant evidence pertaining to the claims before the Board. As such, the Board finds that VA has no duty to obtain SSA records prior to reaching a final decision. See Golz v. Shinseki, 590 F.3d 1343 (Fed. Cir. 2010) (finding that VA's duty to assist "is not boundless in scope" and that VA's duty to assist only extends to records which are "relevant" to the claim.) The Court has also held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: (1) the duty to explain fully the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the August 2011 hearing, the undersigned identified the issues on appeal and queried the Veteran as to whether there were any relevant records which needed to be obtained. Additionally, the undersigned specifically discussed the significance of medical nexus evidence in his case and the types of factors which the undersigned would consider in evaluating the evidence. The Board thereby fulfilled its duty under Bryant. Finally, the Board obtained opinion from a VHA specialist as necessary to decide the claims. The opinion received, dated January 2012, reflects an accurate review of the factual record and fully answers the questions posed by the Board on both direct and secondary theories. Notably, this examiner stated that the Veteran's claims folder did not document any left knee injuries or conditions requiring evaluation or treatment during active service. On the other hand, the examiner specifically noted review of an April 6, 1967 service treatment record which references the left knee. There is also a vague, potential reference to the left knee November 1968. In the opinion of the Board, the underlying premise for this examiner's opinion is correct as there is no significant service treatment record for left knee injury or condition requiring specific evaluation or treatment. Overall, the Board finds that the January 2012 opinion is adequate for rating purposes. The Board observes that the RO has obtained several opinions in this case. A November 2005 opinion provided an opinion favorable to the Veteran's claims indicating that it was at least as likely as not that the Veteran had a right knee anterior collateral ligament (ACL) tear related to service, and lower back and left knee conditions due to the right knee ACL tear. This answer was premised on the "given history" which referenced a history of left ruptured tendon in service which is clearly incorrect, and made no mention of documented postservice right and left knee injuries which required surgical intervention. Thus, the examination report had limited probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (physician's opinion based upon an inaccurate factual premise has no probative value). As such, the Board finds that the RO was justified in obtaining additional medical opinion. See generally Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that it is not permissible to undertake additional development for the purpose of developing negative evidence). Overall, there is no indication that there is any additional relevant and available evidence to be obtained by either VA or the Veteran. Therefore, the Board determines that VA has made reasonable efforts to the assist the Veteran in obtaining the evidence necessary to substantiate the instant claims. II. Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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(b). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, 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). Id. The Veteran filed his left knee and low back disability claims in 2005, specifically raising secondary service connection theories. Service connection may be established for a disability which 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Effective from October 10, 2006, the provisions of 38 C.F.R. § 3.310 were amended. Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions appear to amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995 by requiring that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744- 47 (Sept. 7, 2006). To the extent this provision applies, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not technically require the establishment of a baseline before an award of service connection may be made. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a benefits claim 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). In Barr, the Court emphasized that 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 the presence or absence of the claimed symptomatology. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. § 3.159(a)(1). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Id. Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. 38 C.F.R. § 3.159(a)(2). The Veteran's service treatment records (STRs) are significant for an April 1967 orthopedic note which documented the Veteran's complaint of pain in both knees aggravated by running or prolonged sitting. Examination noted excellent muscle tone in both legs. The patella was quite hypermobile with extension. There was mild grating in the left knee. McMurray's was negative. The examiner offered an assessment of chondromalacia patella on the right for which the Veteran was given a permanent physical profile. There appears to be a reference to left knee pain in November 1968. On his April 1969 separation examination, the Veteran endorsed a history of "trick" or locked knee. He further elaborated by reporting chondromalacia of the right knee only. The examiner offered a diagnosis of chondromalacia patella of the right. Postservice, there is no documentary evidence of record showing any further complaints of, or treatment for, any knee or back disorder until 1985. In March 1985, the Veteran was involved in a work related injury which resulted in a ruptured right patella tendon for which he underwent surgery. From that period, the medical records in the Veteran's claim file show ongoing complaints of right knee pain. An October 1991 report of private treatment noted that the Veteran sustained an injury to his low back in May 1990 when he slipped off a log at work. A September 1990 VA examination revealed mild degenerative joint disease with medial lateral laxity and multiple post-surgical scars. A December 1991 private treatment record references the Veteran's report of difficulty with stair climbing due to bilateral knee pain. A March 2001 report of treatment noted that the Veteran sustained an injury to his left knee while at work in December 1999, and underwent surgery in May 2000 for repair of a ruptured left patellar tendon. He again had surgery on his knee in July 2000 where hardware was removed. He was noted to be fit to return to work in January 2001 with a finding of 10 percent whole person impairment. A February 2005 report of outpatient treatment noted the Veteran to have complaints of low back pain after injuring his back in December 2004 while cleaning a ditch with a rake. X-rays performed in a VA medical facility in April 2005 revealed mild degenerative changes with right suprapatellar joint effusion and patellar spurring. In two September 2005 private opinions, a physician's assistant noted the Veteran's in service right patellar chondromalacia, and opined that the Veteran's current right knee disorder was directly related to his in service injury, and further that the Veteran's reported left knee and low back disabilities were due to overcompensating because of the Veteran's right knee disability. However, it is not clear that this examiner was aware of the Veteran's post service injuries to his knees and back, as these were not mentioned at all in the opinions. A November 2005 VA examiner found that current diagnoses of left knee ACL tear and degenerative disc disease of the lumbar spine were as likely as not secondary to his right knee ACL tear and osteoarthritis. This opinion was based upon the history provided by the Veteran, which included his report of suffering from a left "ruptured patella" "since 4/67" and without reference to a postservice back injury. A March 2007 VA examiner opined that the Veteran's current knee problems were produced by the injury that he sustained in an on the job accident in 1985. In support of this opinion, the examiner noted that the Veteran did not actually have a sustained injury while he was in the military but only symptoms of pain around the knee during running. At that time he was diagnosed with chondromalacia patella and put on a profile, and was not shown to have other problems with his knees in service. The examiner also noted the huge gap between 1967 and the injury that the Veteran sustained in 1985, stating that there was no evidence that the Veteran complained about his knees giving him problems during that period. The examiner indicated that, in his opinion, there was absolutely no evidence that the military service either caused or aggravated the Veteran's current knee problems, and he believed that the Veteran's current knee problems were due to the injuries he sustained on the job in 1985. The Veteran received a VA examination in May 2011 for his left knee. The examiner reviewed the Veteran's knee disabilities and his history of injuries to his knees in service, as well as the Veteran's service treatment records. The examiner noted that, while the Veteran complained of left knee pain in service, examination of the left knee in service was normal. The examiner noted that there was no evidence of injury in service to either knee. He then noted that, 30 years after service, in 1999, the Veteran had an on the job injury of a ruptured tendon in the left knee, requiring surgery. The examiner pointed out again that the Veteran had only left knee pain in service, with no diagnosis, and was in service for two years subsequent to his report of left knee pain, with no further knee complaints. The examiner opined that there was "no way" that the Veteran's bilateral knee condition with ruptured patellar tendons, both due to worker's compensation injuries, was related to service. He indicated that his current left knee disability was not related to service, to include his chondromalacia of the right knee, nor was any left knee disability aggravated by service. The Veteran's claims file was sent to a VHA specialist for an opinion, which was received in January 2012. The physician indicated that, in his opinion, the Veteran's right knee arthritis was not related to service. In support of this opinion, the physician indicated that the Veteran reported anterior right knee pain which was diagnosed in service as chondromalacia, however, the physician noted that this diagnosis was not confirmed in service. He indicated that anterior knee pain is not a diagnosis but more a description of symptoms and is often attributed to dynamic and static abnormalities of the patellofemoral articulation. The examiner further opined that there was no history documented in the Veteran's service treatment records of a sufficient direct or indirect injury to the Veteran's right knee that could have been reasonably expected to result in post-traumatic arthritis of the Veteran's right knee patellofemoral joint or a permanent alteration of the Veteran's right knee patellofemoral articulation. There was insufficient objective medical evidence available to establish causation or nexus between the Veteran's reported knee pain during active military service and a diagnosis of right knee arthritis. He indicated, however, that there was sufficient objective medical evidence to attribute the Veteran's right knee arthritis solely to the traumatic right knee injury in 1985 that resulted in an acute patellar ligament rupture requiring surgical repair. The examiner also indicated that no portion of the Veteran's current right knee arthritis has been aggravated beyond its normal progression by the Veteran's service-connected right knee chondromalacia. In addition, the examiner noted that there was insufficient objective medical evidence available to establish a nexus or causation between any portion of the Veteran's current left knee disability and the service connected right knee disability or service. In support of this, the examiner noted that the Veteran's claims file did not document any left knee injuries or conditions requiring evaluation or treatment during the Veteran's service. The examiner indicated that there was sufficient objective medical evidence to attribute the Veteran's left knee disability solely to the traumatic left knee injury in 2000 that resulted in an acute patellar ligament rupture requiring surgical repair in May 2000. The examiner also indicated that there was no evidence showing that the Veteran's left knee disability had been aggravated by his service-connected right knee disability. Finally, the physician opined that the Veteran's low back disability was not related to service, or related to, to include as aggravated by, his service-connected right knee disability. The physician indicated that there was sufficient objective medical evidence of record to attribute the Veteran's lower back disability solely to his traumatic lower back injury in 1990. The Board finds that the Veteran's right knee disabilities to not include chondromalacia are not related to service. In this regard, the Board again notes that the Veteran's service treatment records show right knee chondromalacia upon his separation from service in April 1969. However, the medical evidence of record shows that the Veteran had no further treatment for any knee disability from his separation from service until 1985, 16 years after his separation from service, when he clearly incurred traumatic and permanent injury to the right knee. As there is no evidence of arthritis within the first postservice year, the presumptive provisions of 38 C.F.R. § 3.309(a) are not applicable. The record includes September 2005 private opinions that link the entirety of the Veteran's right knee disabilities to service. However, the Board notes that these opinions do not mention the Veteran's 1985 right knee injury which involved a ruptured patella tendon and required surgical intervention. The inaccurate factual basis on such a material fact lessens the probative value of these opinions. See Reonal, 5 Vet. App. at 460-61. A November 2005 VA examiner provided a current diagnosis of right ACL tear and osteoarthritis which was presumed as a service-connected disability. However, this opinion did not explain the basis for attributing the right ACL tear and osteoarthritis to the chondromalacia exhibited during service, and did not exhibit any knowledge of the Veteran's 1985 right knee injury which involved a ruptured patella tendon and required surgical intervention. As such, this opinion also has limited probative value. The most probative medical opinion on this issue concerns the January 2012 VHA opinion which clearly articulated that the Veteran's right knee arthritis was not attributable to any type of event during active service, including any direct or indirect right knee injury sufficient to cause post traumatic arthritis. Rather, the examiner identified the work-related injury in 1985 which required ruptured patellar tendon repair as the sole cause of the currently manifested arthritis. This physician further found that there was insufficient objective medical evidence available to establish causation or nexus between the Veteran's reported knee pain during active military service and a diagnosis of right knee arthritis and that no portion of the Veteran's current right knee arthritis has been aggravated beyond its normal progression by the Veteran's service-connected right knee chondromalacia. Overall, the Board finds that the January 2012 VHA examiner opinion substantially outweighs the opinions offered by the September 2005 physician's assistant and the November 2005 VA examiner as this opinion is based on an accurate factual history as found by the Board, including acceptance of a service-connected chondromalacia. Additionally, this examiner offered a definitive opinion which was supported to specific evidence of record. Furthermore, the VHA examiner is a Board Certified Orthopedic Surgeon which lends further probative weight as the opinion stems from an expert in the field. Finally, the Board has considered the opinion offered by the Veteran himself. As demonstrated above, the Board has accepted the history of chronic right knee pain in service upon which the service connection award of chondromalacia is based. However, the Board places greater probative weight to the opinion of the VHA examiner as this examiner has greater expertise and training than the Veteran in speaking to the complex medical issues at hand. Thus, considering all evidence of record, the Board finds only the Veteran's diagnosis of right knee chondromalacia patella is related to service. Secondly, taking into account all relevant evidence of record, the Board finds that the Veteran's left knee disability is not related to service. First, the Board notes that, while the Veteran did complain of pain in both knees in service, he was not found to have any left knee disability in service, to include on his report of separation examination. The Veteran has testified continuous left knee pain during service, yet this report is not consistent with the separation examination wherein he only identified right knee chondromalacia. He also identified other problems, such as left shoulder pain, but this examination report is conspicuously silent as to complaint of left knee pain. Thereafter, the evidence of record does not show any finding of left knee complaints until December 1991, when he reported bilateral knee pain when using stairs. He suffered a ruptured patella tendon at work in 1999. Overall, the Board finds that the Veteran's allegations of continuous left knee pain from service are not consistent with the entire evidentiary record. The Veteran's STRs reference left knee complaints in April 1967 and possibly November 1968. In the opinion of the Board, a reasonable inference may be drawn from the separation examination report that his failure to identify left knee pain, in the context of specifically mentioning right knee pain and left shoulder pain, leads to a conclusion that the Veteran did not in fact experience left knee pain at the time of service separation. His vague recollections to the contrary, made decades after the fact in the context of seeking compensation, are outweighed by the entirety of the evidentiary record. The Board also observes that there is no lay or medical evidence of low back symptoms or injury during active service. Furthermore, as there is no evidence of arthritis within the first postservice year, the presumptive provisions of 38 C.F.R. § 3.309(a) are not applicable to the left knee and low back disability claims. Again, the record includes a September 2005 opinion from a physician's assistant which attributes the Veteran's current left knee and low back disabilities as secondary to service-connected right knee disability, on the theory of overcompensation for the right knee impairment. A November 2005 VA examiner arrived at a similar conclusion, but no reason was provided for this conclusion. On the other hand, a VHA examiner in January 2012 provided a clear opinion that the Veteran's left knee was found to be normal during service, and that no portion of the current left or low back disabilities could be attributable to service or service-connected right knee chondromalacia. Rather, the Veteran pointed to specific traumatic injuries to the left knee and the low back as being "solely" responsible for the current disabilities. Overall, the Board finds that the January 2012 VHA examiner opinion substantially outweighs the opinions offered by the September 2005 physician's assistant and the November 2005 VA examiner as this opinion is based on an accurate factual history as found by the Board, including acceptance of a service-connected chondromalacia and specific review of the service treatment entry dated April 6, 1967. Additionally, this examiner offered a definitive opinion which was supported to specific evidence of record. Furthermore, the VHA examiner is a Board Certified Orthopedic Surgeon which lends further probative weight as the opinion stems from an expert in the field. Finally, the Board has considered the opinion offered by the Veteran himself. As demonstrated above, the Board does not find as reliable or credible the currently claimed history of chronic left knee symptoms since service. He does not allege low back injury during service, or persistent or recurrent symptoms of low back disability since service. In any event, the Board places greater probative weight to the opinion of the VHA examiner as this examiner has greater expertise and training than the Veteran in speaking to the complex medical issues at hand. Thus, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a left knee or low back disability. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and they must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Service connection for a right knee disability, other than chondromalacia, is denied. Service connection for a left knee disability, to include as secondary to the Veteran's service connected right knee disability, is denied. Service connection for a lumbar spine disability, to include as secondary to the Veteran's service connected right knee disability, is denied. REMAND In May 2012 the Board granted the Veteran service connection chondromalacia of the right patella and, in June 2012, the RO assigned an initial rating of 10 percent effective September 9, 2005. In May 2013 the Veteran filed a notice of disagreement (NOD) on the initial rating assigned. The Veteran has not been furnished a Statement of the Case (SOC) that addresses the issue of entitlement to an initial rating in excess of 10 percent for the service-connected chondromalacia of the right patella. Consequently, the Board must remand to the RO to furnish an SOC and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO shall furnish the Veteran an SOC on the issue of entitlement to an initial rating in excess of 20 percent for the service-connected chondromalacia of the right patella. The RO shall return this issue to the Board only if the Veteran files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs