Citation Nr: 1428792 Decision Date: 06/25/14 Archive Date: 07/03/14 DOCKET NO. 10-07 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for chondromalacia and patellofemoral syndrome (PFS) of the left knee. 2. Entitlement to service connection for degenerative joint disease (DJD) of the left knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from September 1959 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from September 2010 to February 2013. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. In the March 2013 Supplemental Statement of the Case, the RO stated that these records were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran by the Board proceeding to adjudicate his claims. The Veteran testified at a hearing in July 2012 before the undersigned. A copy of the transcript has been associated with the claims file. The record was held open for an additional 60 days so he could submit additional evidence, and none was received during that period. In March 2013, the Veteran submitted an expedited processing election form wherein he agreed to waive initial RO consideration of any evidence submitted in the future. 38 C.F.R. §§ 20.800, 20.1304(c) (2013). In April 2013, the Veteran submitted a private medical record from July 2012. In January 2013, the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. FINDINGS OF FACT 1. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has chondromalacia/PFS of the left knee that began during active service or is related to an incident of service. 2. The preponderance of the evidence reflects that the Veteran does not have DJD of the left knee due to any incident of his active duty service. CONCLUSIONS OF LAW 1. The Veteran's chondromalacia and PFS of the left knee was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The Veteran's left knee DJD was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA) with regard to his DJD claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Because the Board grants service connection for PFS in this decision, further development of this claim under the VCAA would not avail the Veteran. Prior to initial adjudication, a letter dated in July 2008 satisfied the duty to notify provisions with regard to the Veteran's DJD claim. The Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained. A VA examination adequate for adjudication purposes was provided to the Veteran in connection with his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The February 2013 examination is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his left knee DJD in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Veteran testified at a hearing in July 2012. The hearing focused on the elements necessary to substantiate his service connection claim and, through his testimony and his representative's statements, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. The issue on appeal was clearly set forth and the undersigned suggested types of evidence he could submit in support of his claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009). This case was remanded in January 2013 to obtain VA and private treatment records and to afford the Veteran an examination. Additional VA treatment records were obtained and he underwent an examination as discussed above. The RO attempted to obtain additional records from Dr. S. Z. at Murphy Medical Center but received negative response by telephone in March 2013. The RO was informed that Dr. S. Z. no longer worked with the practice and had taken his patients' records with him when he left. The point of contact for the Murphy Medical Center did not know where Dr. S. Z. practiced medicine after leaving. The RO notified the Veteran of this by telephone in March 2013, and he informed the RO that he did not know where Dr. S. Z. practiced medicine and was therefore unable to provide the necessary contact information for the RO to attempt to obtain his records. There was substantial compliance with the Board's March 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002 and Supp. 2013); 38 C.F.R. § 3.303 (2013). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2013); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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) (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2013); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Chondromalacia/PFS On VA examination in February 2013, the Veteran was diagnosed with chondromalacia/PFS of the left knee. He has competently and credibly asserted that he operated heavy machinery in service, and used the clutch of large vehicles with his left leg, which was painful. The first two elements of a service connection claim are satisfied. Shedden, 381 F.3d at 1166-67. The February 2013 VA examiner found that the Veteran's reported in-service symptoms were "suggestive" of PFS even though there was no treatment noted in his STRs. The examiner also stated that the Veteran's PFS was "possibly symptomatic" in-service. Resolving all doubt in favor of the Veteran, the nexus requirement of a service connection claim is satisfied and service connection is granted. Id. See also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). B. DJD On VA examination in February 2013, the Veteran was diagnosed DJD of the left knee. He has competently and credibly asserted that he operated heavy machinery in service, and used the clutch of large vehicles with his left leg. The first two elements of a service connection claim are satisfied. Shedden, 381 F.3d at 1166-67. Although arthritis is a chronic disease subject to presumptive service connection, he was not diagnosed with this condition within one year of separation from service. The earliest mention of DJD in his treatment records is in a September 2003 VA treatment record where a health care provider found that his bilateral knee crepitation and joint line tenders were "entirely consistent with DJD," but he refused an x-ray. He was first diagnosed with DJD by x-ray in July 2008. Because he did not have arthritis that manifested itself to a compensable degree within one year of separation from service, presumptive service connection is not warranted. 38 U.S.C.A. §§ 1101, 1112 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran has asserted that his left knee disability manifested in service and that he has experienced symptoms continuously since that time. Arthritis is a chronic condition as set forth in 38 C.F.R. § 3.309(a) (2013). Therefore, the theory of continuity of symptomatology is applicable in this case. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At his February 2013 VA examination, the Veteran reported that knee pain and stiffness had their onset in service as a result of operating the clutches of heavy machinery. He did not recall seeking treatment for knee symptoms in service, but stated that his pain became worse over time. The Veteran is competent to report his observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the record does not support a continuity of symptomatology. Indeed, the Veteran's statements are contradicted by the STRs, which are entirely devoid of any mention of knee symptoms. Further, at his September 1962, January 1965, and December 1971 examinations, he was specifically found to have normal lower extremities. In his January 1965 and December 1971 reports of medical history, he specifically denied having a "trick" or locked knee, arthritis, or bone or joint deformity. Further, at his examinations for his Reserve service, over 20 years later, he continued to deny knee symptoms. In his May 1993 and November 1995 reports of medical history, he specifically denied having a "trick" or locked knee, arthritis, and bone or joint deformity. At his December 1993 and November 1995 dental health questionnaires, he specifically denied having painful joints. The Veteran's in-service and Reserve physical examinations and questionnaire responses are particularly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73(1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's specific denials of knee problems at these examinations and in his questionnaires damage the credibility of his subsequent reports many years later and they are therefore not probative. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Service connection based upon continuity of symptoms is not warranted. Lastly, service connection is not warranted on a direct basis. The Veteran was first diagnosed with DJD by x-ray in July 2008 by a private physician. He underwent a VA examination in February 2013. He reported that he first experienced left knee pain and stiffness in service and attributed it to operating the clutches of heavy machinery. The examiner stated that the Veteran did not recall a specific in-service trauma and that his left knee pain worsened over time. An x-ray conducted at the time of the examination showed DJD. The examiner diagnosed DJD. The examiner found that his DJD was not related to service. He explained that the Veteran denied knee problems in September 1962, January 1965, December 1971, May 1993, and November 1995. Further, he explained that because the Veteran had a normal knee x-ray in 2005 but was found to have DJD in other joints, "...it is more likely than not that his DJD is due to natural processes given its multiarticular presentation." The examiner's opinion and rationale provide probative evidence against the Veteran's claim because they provide evidence that the DJD was caused by a natural process as opposed to operating clutch. The Board has considered the Veteran's lay assertions. At his July 2012 hearing, the Veteran testified that his private physician told him in 2003 that his use of clutches in service was "probably" what caused his DJD. The Veteran is competent to state what his physician said to him. Layno, 6 Vet. App. 465. The physician's records from 2003 are not available. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. There is nothing in the record to damage the Veteran's credibility with regard to this statement. Barr, 21 Vet. App. at 308. However, speculative language such as "probably" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore the Veteran's statement about what his physician told him is not probative evidence in favor of his claim. Lastly, the Veteran is not competent to assert that the observable symptoms he experienced in service are manifestations of his currently diagnosed DJD. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, whether the symptoms he experienced in service were manifestations of DJD, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F .3d at 1377 n.4. There are many potential causes for knee pain. Further, DJD is an internal process that is confirmed by x-ray. The Veteran does not have the specialized experience needed to determine the cause of his symptoms in this case. Further, his assertion that his current DJD is related to service has been investigated by competent medical examination and found not supportable. Jandreau, 492 F.3d 1372. The Board finds that the Veteran's lay assertions are not probative evidence. The findings of the VA examiner with regard to the Veteran's DJD are probative evidence against his claim for the reasons discussed above. The Board finds that the preponderance of the evidence is against service connection for DJD of the left knee. Therefore, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for chondromalacia and patellofemoral syndrome of the left knee is granted. Service connection for degenerative joint disease of the left knee is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs