Citation Nr: 1514784 Decision Date: 04/06/15 Archive Date: 04/21/15 DOCKET NO. 13-06 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a left knee condition. WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and R.E. ATTORNEY FOR THE BOARD M. Elias, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1958 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran and his witnesses testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2014. During the hearing it was clarified that the Veteran did not have a representative. A transcript of the hearing is of record. The Board remanded this claim in April 2014 for further development. It now returns for appellate review. FINDING OF FACT There is clear and unmistakable evidence that the Veteran's left knee condition preexisted service and that any increase in disability was due to the natural progress of the preexisting left knee condition. CONCLUSION OF LAW The criteria for service connection for a left knee condition have not been met. 38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014). March 2009 and June 2009 letters provided all notice required under the VCAA. They informed the Veteran of the elements of service connection, the types of evidence that could support the claim, and the allocation of responsibilities between the Veteran and VA for obtaining relevant records and other evidence on his behalf necessary to substantiate the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). The letters were followed by adequate time for him to submit additional information and evidence in response before initial adjudication of his claim. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007). Concerning the duty to assist, the Veteran's service treatment records (STRs), VA treatment records, and private treatment records identified by him have been associated with the claims file. See 38 U.S.C.A § 5103A; 38 C.F.R. § 3.159(c). He has not identified any other records or evidence he wished to submit or have VA obtain. The duty to assist also includes providing a VA examination when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). An adequate VA examination was performed in July 2014 concerning the Veteran's claim for a left knee condition. See 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examination report includes a review of the Veteran's medical history and the clinical findings made on examination, and the opinion provided is supported by an explanation that is consistent with the evidence of record and sufficient to make a fully informed decision on this claim. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion even when the rationale does not explicitly 'lay out the examiner's journey from the facts to a conclusion'") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one); see also Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that the Board is "entitled to assume" the competency of a VA examiner without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). Accordingly, the examination and opinion are adequate for the purposes of this decision. Accordingly, the Veteran has had a meaningful opportunity to participate effectively in the processing of this claim and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). II. Compliance with Remand Directives The Board remanded this claim in April 2014 for further development. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. But see also D'Aries, 22 Vet. App. at 105 (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). On remand, VA obtained the Veteran's VA treatment records and associated them with the file. In addition, VA provided the Veteran with a VA examination. Thus, there has been at least substantial compliance with the remand directives. See id. III. Compliance with Hearing Officer's Duties The Veteran testified at a March 2014 hearing before the undersigned. Under 38 C.F.R. § 3.103(c)(2) (2014), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id. at 496-97. At the hearing, the Veteran had an opportunity to provide testimony in support of his claim, facilitated by questioning from the undersigned. The Veteran did not raise any new issues at the hearing with regards to his left knee condition, and there is no indication that any outstanding evidence exists that might provide additional support for that claim. Moreover, after the hearing was conducted, the Board undertook additional development, including obtaining a VA examination to address the outstanding issue of whether the Veteran had a current left knee condition and, if so, if it was related to his service. Given this development, and in light of the Veteran's testimony at the hearing and the evidence in the claims file, the "clarity and completeness of the hearing record [is] intact" and there is no prejudicial error concerning the hearing officer's duties under 38 C.F.R. § 3.103(c)(2). See Bryant, 23 Vet. App. at 498 (holding that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c)); see also Sanders, 556 U.S. at 407, 410. IV. Service Connection The Veteran's claim of service connection for a left knee condition is based on his contention that his current left knee condition resulted from left knee injuries that occurred while he was on active duty, as stated in the March 2014 hearing transcript. For the following reasons, the Board finds that entitlement to service connection for a left knee condition is not established. Service connection means that a veteran has a current disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). The Board has reviewed all the evidence in the claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must assess the credibility and weight of all evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Veteran has been diagnosed with a current disability. More specifically, the July 2014 VA examination report reflects the diagnosis of bipartite patella, which is a knee cap that is divided into two parts. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (32nd ed. 2012). In addition, there is evidence of an in-service incurrence or aggravation of a disease or injury. More specifically, the Veteran's testimony and STRs show that the Veteran suffered from two knee injuries while in service, one of which required two sutures. The Board notes that the Veteran's left knee condition was not noted at entry into service. However, the July 2014 VA examination report states that the Veteran's left knee condition is congenital and thus preexisted service. As there is a question as to whether the Veteran's left knee condition preexisted active service, the Board must determine whether the presumption of soundness has been rebutted. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). For the following reasons, the Board finds that the presumption of soundness has been rebutted, and therefore, service connection has not been established. A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). VA may find a lack of aggravation under 38 U.S.C. § 1111 if clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 (West 2014) and 38 C.F.R. § 3.306 (2014)); but see Horn, 25 Vet. App. at 238 (emphasizing that "neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111"). If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the preexisting condition was not aggravated by active service, then the presumption has not been rebutted. See id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question preexisted active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. Id. If the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Gilbert, 26 Vet. App. at 53 (citing Horn, 25 Vet. App. at 236). Nevertheless, the claimant must still establish a current disability related to the in-service injury or disease. Id. (citing Holton v. Shinseki, 557 F.3d 1363, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.")). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Here, the Veteran's February 1958 entrance examination report does not note any problems with the Veteran's left knee. The only notation regarding the Veteran's left knee is "S1", lt knee." This has been interpreted to indicate that there was a one inch scar on the Veteran's left knee. In addition, the entrance examination report states that the Veteran has no defects or diagnoses. Finally, the Veteran's physical profile, or "PULHES" profile, reflects a numerical designation of 1 under all categories, including "L" which stands for lower extremities. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). "An individual having a numerical designation of '1' under all factors is considered to possess a high level of medical fitness and, consequently is medically fit for any military assignment." Id. (citations omitted). Therefore, because no defect, infirmity, or disorder was noted with respect to the Veteran's left knee, the presumption of soundness attaches. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b)(1). There is clear and unmistakable evidence that the Veteran's left knee condition preexisted service. The July 2014 VA examination report states that bipartite patella is clearly congenital. Congenital is defined as "referring to conditions that are present at birth, regardless of their causation." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (32nd ed. 2012). In addition, there is clear and unmistakable evidence that any increase in disability was due to the natural progress of the Veteran's preexisting left knee condition. The July 2014 VA examination report states that the Veteran's in-service injury that resulted in sutures was very minor, except for a tiny laceration that healed without residuals. The examination report also states that the Veteran's current left knee symptoms are due to long standing bipartite patella and natural aging and is not reflective of any injury in service. The examiner reiterated that the current condition of the Veteran's left knee is due to natural aging and has no relationship to a single fall with minor laceration in service. The Veteran's private treatment records indicate that the complained of left knee pain and lack of strength in his left knee in both December 2006 and April 2007. However, the private treatment records indicate that the Veteran's private physician thought that the left knee pain and weakness could be a result of two prescription drugs interacting. A December 2009 VA treatment record reflects that the Veteran had left knee pain. In addition, a September 2013 VA treatment record states that the Veteran was being prescribed medication and an off-loading knee brace in response to his left knee pain. However, these treatment records do not indicate anything about the etiology of the Veteran's left knee pain or any relationship that pain may have to the Veteran's in-service injury. The Board has considered the lay statements of the Veteran's spouse, children, and witness at the hearing, all of which describe the Veteran's left knee condition. The Board finds the Veteran and his witnesses to be competent with regard these statements. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that lay testimony is competent as to matters of first-hand knowledge or experience). However, this evidence does not support a nexus between the Veteran's left knee condition and his in-service injury. Nor do these statements contradict the clear and unmistakable evidence that the Veteran's left knee condition both preexisted service and that any increase in disability was due to the natural progress of the Veteran's preexisting left knee condition. The Board also considered the Veteran's competent statements that he had two left knee injuries during service. It is unclear from the July 2014 VA examination report whether or not the examiner considered the Veteran's left knee injury that was not reported in the Veteran's STRs. On the one hand, the Veteran's second in-service injury is not specifically mentioned in the July 2014 VA examination report. On the other hand, the examiner reviewed the Veteran's claims file which includes the Veteran's statements as to his two in-service injuries. However, even if the examiner did not specifically take the Veteran's second in-service injury into consideration, the Board finds that this is not prejudicial as the examiner opined that the Veteran's current condition is due to natural aging and is not reflective of any injury in service. Finally, the Board has considered the Veteran's lay statements asserting that his left knee pain and deformity started the day of his in-service injury and has continued every day since. The Board has also considered the statements of the Veteran, his spouse, and one of his children that his current left knee condition was caused by his in-service injuries. Lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error to reject "categorically" lay statements on the issue of medical nexus, and similarly to make a categorical finding that a medical opinion was required); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). However, as a lay people in the field of medicine, the Veteran, his wife, and his child do not have the training or expertise to render a competent opinion on the medical issue in this case, namely, whether the Veteran's left knee condition preexisted service or was aggravated by his in-service injuries, since this is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the unsupported lay opinions that the Veteran's left knee condition is a result of his in-service injuries, by themselves, do not sustain the claim. See id. Moreover, the lay statements are outweighed by the preponderance of the medical evidence of record discussed above, which shows, clearly and unmistakably, that the Veteran's left knee condition preexisted service and that any increase in disability was due to the natural progress of the preexisting condition . See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical professional's opinion more probative on the issue of medical causation); see also Layno, 6 Vet. App. at 469. In sum, the Board finds that there is clear and convincing evidence that the Veteran's left knee condition both preexisted service and that any increase in disability was due to the natural progress of the preexisting condition. See Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 (West 2014) and 38 C.F.R. § 3.306 (2014). Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a left knee condition is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a left knee condition is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs