Citation Nr: 1522679 Decision Date: 05/28/15 Archive Date: 06/11/15 DOCKET NO. 07-40 410 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to the Veteran's service-connected right knee disability. 2. Entitlement to service connection for a low back disability, to include as secondary to the Veteran's service-connected right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1967. These matters are before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2011, the Board denied the claim for service connection for a left knee disability and remanded the claim for service connection for a low back disability. In March 2012, the United States Court of Appeals for Veterans Claims (the Court) granted a Joint Motion for Remand to vacate and remand the Board's decision denying service connection for a left knee disability. In January 2013, November 2013, and June 2014, the claims were remanded for additional development. The claims are again before the Board. In April 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran's left knee disability is not etiologically related to service, did not manifest to a compensable degree within one year of separation from service, nor was it caused or aggravated by his service-connected right knee disability. 2. The Veteran's low back disability is not etiologically related to service, did not manifest to a compensable degree within one year of separation from service, nor was it caused or aggravated by his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall As noted above, this case was remanded by the Board in January 2013, November 2013, and June 2014. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of those remands was to obtain an adequate VA opinion, provide the Veteran a hearing, and to obtained private treatment records. A review of the record indicates that there has been substantial compliance with the prior remands. Specifically, the Veteran testified before the undersigned VLJ at an April 2014 hearing, an adequate VA opinion was obtained in January 2015, and in an October 2014 letter, the Veteran indicated that the records from Dr. Schmitz had been destroyed. Therefore, the Board finds that the AOJ substantially complied with the prior remand directives, and the Board may now proceed with adjudication. Duties to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, the Court held that VA must inform the Veteran 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 Veteran is expected to provide. 18 Vet. App. 112, 120-21 (2004). In November 2006 and June 2008 letters, the Veteran was notified of the information and evidence necessary to substantiate the claims on a direct basis; information and evidence that the VA would seek to provide; information and evidence that the Veteran was expected to provide; and about the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided a Statement of the Case (SOC) in December 2007, which detailed the law regarding secondary service connection, and the Veteran's claims were re-adjudicated in Supplemental SOCs dated in March 2009, March 2013, and February 2015. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that a notice defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). Accordingly, the duty to notify is met. VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2014) to assist the Veteran. The Veteran's service treatment records (STR), VA and private treatment records have been obtained. The Board notes that private treatment records from Dr. Anderson and Dr. Schmitz are not of record. However, the Veteran indicated that Dr. Thompson's office, the physician who was in possession of Drs. Anderson's and Schmitz's records, indicated that those doctors were deceased and that their records had been destroyed. In light of this negative response, the Board finds further efforts to obtain the outstanding treatment records would be futile. During the applicable appeal period, VA provided the Veteran with VA examinations in February 2007, November 2007, February 2009, October 2011, March 2013, and January 2015. The Board notes that the February 2007 examination report did not contain a medical opinion and the November 2007, February 2009, and March 2013 examiners' did not provide adequate opinions concerning secondary service connection. However, the Board finds that the October 2011 and January 2015 examination reports are adequate. These examination reports reflect that the examiners reviewed the Veteran's claim file, conducted appropriate examinations, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's disabilities. The Board finds that the VA examination reports are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the Veteran was afforded a hearing before the undersigned VLJ during which the Veteran and his representative presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explained the issues on appeal, the hearing focused on the elements necessary to substantiate the Veteran's claims, and the Veteran and his representative demonstrated actual knowledge of the elements necessary to substantiate the claims. Moreover, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2014), nor has either individual identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2014). Based on the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. The Board will therefore review the merits of the Veteran's claims, de novo. Legal Criteria Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). 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 they manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2014); Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). Left Knee Disability The Veteran contends that his left knee disability is related to service, specifically that he injured it hammering together a steel walkway, or it is secondary to his service-connected right knee disability. The evidence of record indicates that the Veteran is diagnosed with left knee status post meniscus surgery, arthritis, and status post total knee replacement. Accordingly, the first Shedden element is satisfied. With regard to an in-service event, injury, or disease, the Veteran's STRs are silent for any left knee complaints, treatment, or diagnosis. The Veteran's April 1966 flight physical examination and March 1967 separation examination reports are also silent for any complaints or abnormalities pertaining to his left knee. The Board acknowledges the letters from Drs. MacMenamin and Thompson indicating that the Veteran injured both knees during service and subsequently developed arthritis. While the Board has considered and weighed these statements, they are based entirely on the Veteran's reports. Moreover, the July 1967 VA examination report and June 1968 treatment records from Dr. Koch regarding the Veteran's post-service meniscus tear are silent for any notations concerning an in-service left knee injury. Thus, with regard to the occurrence of an in-service injury, the Board finds the statements from the Veteran and Drs. MacMenamin and Thompson of less probative value than the Veteran's contemporaneous STRs and the medical records in close proximity to the Veteran separation from service. Accordingly, the second Shedden element is not met and the direct service connection claim fails. For the sake of completeness, the Board will briefly address the remaining element. A May 2007 VA treatment note by physician assistant Ervin, PAC, noted that the Veteran injured both knees during active service and required left knee surgery approximately a year after service. PAC Ervin opined that that the Veteran's left knee disability was more likely than not related to active service. The Board affords PAC Ervin's opinion no probative value because it was based on the inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (stating that "an opinion based upon an inaccurate factual premise has no probative value"). As noted above, the Veteran's STRs are silent for any left knee complaints and in numerous statements, the Veteran indicated that his left knee symptoms began approximately nine months after service. In the November 2007 VA examination report, the examiner opined that while it was less likely than not that the Veteran's left knee disability was related to service, because he was not running, crouching, squatting, or otherwise performing activities that would irritate his left knee after his right knee surgery, the examiner could not be 100 percent certain that the Veteran's left knee problem absolutely did not occur during service as a result of his right knee disability. The Board finds that the November 2007 examiner's opinion is speculative, at best, and fails to apply the correct evidentiary standard. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, it too is afforded no probative weight. At his February 2009 VA examination, the Veteran stated that he first noticed left knee symptoms in approximately January 1968. He denied any precipitating injury, but noted he had been using his left knee more and that his job at that time had required a lot of standing and stopping. He reported that he had meniscus surgery in 1968, after which his left knee did well aside from some swelling. After reviewing all the evidence, the examiner opined that it was less likely than not that the Veteran's left knee disability, including his torn meniscus, had its onset in service. The examiner explained that there would be a proximate association between the injury and the onset of the Veteran's symptoms. The examiner noted that the Veteran reported that his left knee symptoms began after service and that the onset of symptoms, from an in-service meniscus injury, would not have initially manifested after the meniscus tear. In a March 2013 VA examination report, another VA examiner opined that it was less likely than not that the Veteran's left knee disability was related to service, to include general strain related to physical labor. The examiner noted that not only were the Veteran's STRs silent for left knee complaints, but the Veteran denied in-service left knee symptoms. Rather, the Veteran reported his left knee symptoms began approximately nine months after service, at which time he was diagnosed with a left knee meniscus tear. The examiner opined that it was unlikely that the diagnosed meniscus tear occurred during service but did not become symptomatic until nine months later. Instead, it was much more likely that the tear was sustained in close proximity to when the Veteran initially noticed left knee symptoms. Another VA opinion from the March 2013 examiner was obtained in January 2015. The examiner again opined that the Veteran's left knee disability was less likely than not related to military service. The examiner explained that the Veteran's STRs and July 1967 VA examination report were silent for left knee complaints and the Veteran denied in-service left knee symptoms. The examiner noted that the Veteran worked a physically demanding job at the time his left knee became symptomatic, which could explain an acute injury. The examiner opined that a meniscus tear would exhibit symptoms when it occurred and would not have a delayed onset. The examiner reasoned that the absence of in-service symptoms and the timing of the left knee symptoms supported the conclusion that the tear was due to a new event around March 1968, rather than a prior in-service injury. With regard to presumptive service connection for chronic conditions, arthritis is a presumptive condition. However, the evidence of record is silent for any indication or diagnosis of left knee arthritis for many years after service. Specifically, a May 1968 treatment record from Dr. Koch noted that left knee x-rays were negative for bone or joint anomalies. Additionally, the earliest diagnosis of left knee arthritis was in February 1996, almost 30 years after his separation from service. Thus, the evidence is against a finding the Veteran's left knee arthritis is either etiologically related to service or manifested to a compensable degree within one year of his separation from service. With regard to secondary service connection, the Veteran has a current left knee disability and is service-connected for a right knee disability. With regard to the third Wallin element, VA opinions were obtained in November 2007, February 2009, March 2013, and January 2015. As noted above, the November 2007 opinion is afforded little, if any, probative weight because it is speculative and fails to address the correct evidentiary standard. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, as the negative February 2009 and March 2013 opinions are inadequate for adjudicating the claim on a secondary basis, for the sake of brevity the Board will not discuss those examination reports. Accordingly, the Board finds that the most probative evidence concerning secondary service connection is the January 2015 VA examination report. After reviewing and summarizing the pertinent evidence in detail, the examiner opined that it was less likely than not that any left knee disability demonstrated since service, to include meniscal tears and osteoarthritis, was caused by or aggravated by the Veteran's service connected right knee disability. The examiner explained that for one knee to aggravate or cause a condition in the other knee, there had to be evidence that the originally affected side had chronic problems or pain, which would cause an antalgic gait. The examiner noted that there was no evidence of chronic right knee pain or symptoms after the Veteran's 1967 right knee surgery until approximately 2004, by which time the Veteran's left knee had been symptomatic for a number of years. In support of his conclusion, the examiner noted that the Veteran stated that during service his right knee injury manifested only as locking when he would squat. The Veteran also reported that after his right knee surgery he made a quick recovery, did not have an antalgic gait, and had no significant problems with the right knee until approximately 10 years ago. On that basis, the examiner opined that there was no evidence that the Veteran's right knee disability placed additional strain on his left knee to cause or contribute to the current left knee disability. The examiner reasoned that if the right knee was not chronically painful or symptomatic, it would not be expected to alter his gait or affect the use of the right knee to place additional strain on the left knee. Moreover, the examiner noted that the Veteran's medical records indicated that the Veteran's left knee became symptomatic prior to his right knee and that his left knee had more bowing and more severe arthritis than his right knee. The examiner opined that there were two injuries to the Veteran's left knee, his post-service left meniscal tear and an incident where a large dog ran into the lateral aspect of his left knee, which fully explained the Veteran's left knee condition and that they were unrelated to the Veteran's right knee disability. Thus, it was less likely than not that the Veteran's service-connected right knee disability caused or aggravated the Veteran's left knee disability. The Board has not overlooked the Veteran's assertions that he injured or tore his left meniscus during service or, in the alternative, that his left knee disability was caused or aggravated by his service-connected right knee disability. While the Veteran is competent to report observable symptoms, there is no evidence that the Veteran has the requisite medical training or knowledge to render a diagnosis or opinion regarding the etiology of his left knee disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). Accordingly, to the extent that the Veteran's statements are offered as evidence of a diagnosis or etiology, they are not competent evidence and are afforded no probative weight. Accordingly, the Board finds that the weight of the evidence is against finding that the Veteran's left knee disability was caused by service or was caused or aggravated by his right knee disability, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). Low Back Disability The Veteran claims that his low back disability was incurred secondary to his service-connected right knee disability. VA and private treatment records as well as the VA examination reports of record indicate that the Veteran is diagnosed with degenerative disc disease (DDD), arthritis, and spinal stenosis of the lumbar spine. Accordingly, the threshold element of a current diagnosis is met. With regard to an in-service injury or disease, the Veteran's STRs are silent for any complaints, treatment, or diagnoses concerning the Veteran's low back. The Veteran's April 1966 flight physical examination and March 1967 separation examination reports are silent for any low back complaints or abnormalities. Accordingly, the second Shedden element is not met and the Veteran's direct service connection claim fails and there is no need to address the final element. With regard to presumptive service connection for chronic conditions, arthritis is a presumptive condition. However, the evidence of record is silent for any indication or diagnosis of arthritis for many years after service. Specifically, the July 1967 VA examination report is silent for any back complaints and the Veteran testified that his back did not begin bothering him until the early 1970s, which is more than one year after his separation from service. Thus, the evidence is against finding that that the Veteran's arthritis of the lumbar spine manifested to a compensable degree within one year of his separation from service. With regard to secondary service connection, the Veteran has a current low back disability and is service connected for a right knee disability. Accordingly, the claim turns on whether there is a nexus between his current low back disability and his service-connected right knee disability. In a May 1990 treatment record, Dr. Meeker opined that most of the Veteran's back problems stemmed from a Jeep accident approximately 10 years ago. In a May 1991 treatment record, Dr. Thompson noted that the Veteran reported intermittent back problems that started after a Jeep accident. The Board notes that a May 2007 VA treatment note authored by physician assistant Ervin indicated that the Veteran injured both knees during active service and opined that his back pain might be related to his knee injuries if one leg was shorter than the other. The Board affords the May 2007 opinion no probative weight. As noted above, the opinion was based on the inaccurate factual premise that the Veteran injured both knees in service. Moreover, the opinion concerning the Veteran's back is speculative. Obert v. Brown, 5 Vet. App. 30, 33 (1993), (stating that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). A VA etiological opinion was obtained in November 2007. However, as that opinion was not favorable to the Veteran and did not adequately address secondary service connection, for the sake of brevity, the Board will not address that opinion. At his October 2011 VA spine examination, the Veteran stated that he really had no idea when his back pain started. He explained that the onset was gradual and that it probably started in the 1970s. The examiner diagnosed the Veteran with osteoarthritis and congenital vertebral anomalies, specifically an absent left inferior L4 and superior L5 posterior articular processes. The examiner opined that after review of the Veteran's pertinent records, pertinent medical literature, and examination of the Veteran, that it was less likely than not that the Veteran's low back disability was caused or aggravated by his service-connected right knee. The examiner explained that the degree and severity of the Veteran's right knee condition during, after, and remotely after service were not sufficient to alter biomechanical forces significantly enough to cause or aggravate the Veteran's low back disability. The examiner noted that while the Veteran asserted that altered biomechanics during his post-service employment caused his low back disability, that contention was not supported by the medical evidence of record. In support, the examiner noted that low back x-rays and scans from November 1989 and May 1990 demonstrated congenital anomalies of the lumbar vertebrae that subsequently developed degenerative joint changes and caused radicular symptoms. The examiner opined that while the Veteran had a small leg length discrepancy, it was insufficient to contribute to low back osteoarthritis, mechanical back strain, or alteration of the Veteran's biomechanics. The examiner also noted that private treatment records indicated that the Veteran was involved in a Jeep accident in March 1980, which had resulted in an acute lower back strain followed by relatively consistent and on-going medical care for lower back symptoms. The examiner opined that development and continued progression of the Veteran's low back disability was entirely consistent with progression due to the natural history of his condition, particularly his demanding post-service employment, his congenital anomaly, and post-service mechanical back injuries. The examiner further opined that there were no additional clinically significant contributing factors present, including the Veteran's service-connected knee disability. Thus, the Veteran's low back disabilities were not caused or aggravated by his service-connected right knee. At his April 2014 hearing, the Veteran testified that Dr. Thompson told him that he had back problems because he could not use his knees to lift like normal people, so lifting put extra pressure on his back. A review of Dr. Thompson's treatment records does not corroborate the Veteran's testimony. To the contrary, Dr. Thompson's treatment records are silent for any indication that the Veteran's low back disabilities were caused or aggravated by his service-connected right knee disability. Rather, private treatment records, including those from Dr. Thompson, related the Veteran's back symptoms to his Jeep accident. The Board acknowledges the Veteran's assertions that his low back disability was caused or aggravated by his service-connected right knee disability. As noted above, there is no evidence that he has the requisite medical training or knowledge to render a diagnosis or etiological opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, to the extent they are offered as evidence of a diagnosis or etiology, they are not competent evidence and are afforded no probative weight. Accordingly, the Board finds that the weight of the evidence is against the claim and service connection must be denied. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). ORDER Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability, is denied. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans sAffairs