Citation Nr: 1524707 Decision Date: 06/09/15 Archive Date: 06/19/15 DOCKET NO. 12-14 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Barsoum, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1974 to November 1976. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claim of entitlement to service connection for a right knee disorder. In February 2013, the Veteran testified before the undersigned at a Video conference hearing at the RO. A hearing transcript has been associated with the claims file. The Veteran also requested a hearing before a Decision Review Officer (DRO) through the Post-Decision Review process, which was scheduled in March 2012. However, the Veteran failed to report for the scheduled DRO hearing, and has not requested rescheduling of that hearing. As such, his DRO hearing request has been deemed withdrawn. This case was brought before the Board in March 2014 and December 2014, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him an additional VA examination opinion. After accomplishing further action, the AMC continued to deny the claim (as reflected in a March 2015 supplemental statement of the case (SSOC)). The Board has reviewed the Veteran's electronic claims files (in both Virtual VA and the Veterans Benefits Management System). FINDING OF FACT A right knee disorder is not causally or etiologically related to any disease, injury, or incident of service and was not manifested within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for a right knee disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Due Process Considerations The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2014). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this appeal, in an October 2009 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate and complete his service connection claim, including his and VA's respective responsibilities in obtaining such evidence and information. The October 2009 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The April 2010 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the October 2009 letter meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment records, service personnel records, VA treatment records, and statements from the Veteran and his sister. The Veteran was also afforded a March 2010 VA examination, with an addendum opinion in June 2014, and a VA medical opinion in March 2015. The Board finds that the March 2015 medical opinion is adequate to decide the issue as it is predicated on consideration of the Veteran's record. The examiner provided an opinion with supporting rationale based on sound medical principles. In addition to obtaining an adequate medical opinion, the Board remanded this matter previously in order to afford the Veteran an opportunity to identify any outstanding treatment records and obtain Social Security Administration (SSA) records. The Veteran testified during his February 2013 hearing that he had received post-service treatment for his claimed right knee disorder at a private clinic from the late 1970s through the 1980s. Accordingly, the AMC sent the Veteran a letter requesting that he identify any outstanding treatment records, including any post-treatment records, referable to his right knee disorder. In a response dated May 2014, the Veteran stated that no such records exist as "the [private] clinic is no longer in service." The Veteran indicated that he tried to find such records with no luck. The AMC also obtained SSA records. Therefore, the Board finds that the AMC has substantially complied with the March 2014 and December 2014 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. at 268, where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As previously noted, the Veteran was also provided an opportunity to set forth his contentions during a hearing in February 2013. In Bryant v. Shinseki, 23 Vet App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" (or a Veterans Law Judge (VLJ) with the Board) who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned VLJ specifically noted the issue on appeal, and advised the Veteran of the basis for the RO's denial and advised him of the evidence necessary to substantiate the claim. Moreover, the Veteran was asked questions directed at determining whether there was any outstanding evidence that may be available to substantiate his claim. As such, the undersigned VLJ has complied with the aforementioned hearing duties. Thus, the Board finds that, to the extent possible, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide this appeal, nor argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available but not yet part of the claims file. Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). 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) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that service connection is warranted on the basis that he developed a right knee disorder due to in-service trauma. See February 2013 Hearing Testimony. A June 2009 Houston VA Medical Center record indicates that the Veteran was diagnosed with osteoarthritis of both knees. As such, the Veteran's present disorder is substantiated. In regard to evidence of an in-service event, the Veteran's DD-214 indicates that the Veteran served in the Air Force as a "Still Photographic Specialist." The Veteran's service treatment records reveal that in February 1975, the Veteran sought treatment to his right leg due to "intermittent [discomfort] when [he] plays ball." The doctor noted the knee was deemed stable with no locking or clicking, and no effusion. The only treatment recommended was that the Veteran wear an ace wrap while playing sports, and return if the problem continues. In April 1976, over one year later, the Veteran again received medical treatment concerning a sore right knee. The Veteran, through his representative, testified that this occurred when he fell while he was about to take a picture pursuant to the duties of his position in the military. The Doctor recorded in his exam that the Veteran's x-rays were negative, but that the Veteran should return for a follow up in one week. These were the only two entries noted in the service treatment records regarding the Veteran's right knee. The Veteran never returned after his April 1976 in-service treatment for his right knee. The Veteran testified in the February 2013 hearing that he did not return because he "received orders for a temporary duty assignment, so he was not able to follow through with the clinic that had first treated him." However, the Veteran did seek medical treatment for other matters only one month later, in May 1976, for a left ankle injury while he was playing basketball and again for stomach cramps. The Veteran did not seek any medical treatment for his right knee during this time in May 1976, or ever again during service. The Veteran's separation exam, in November 1976, is also silent as to any right knee or musculoskeletal problems. During the separation exam, the Veteran stated he presently was in "good health," and denied currently experiencing or "ever" experiencing instances of swollen or painful joints, cramps in legs, broken bones, arthritis, bone, joint, or other deformity. The element of an in-service event is substantiated. In regard to post-service evidence, during the February 2013 hearing, the Veteran testified that he received post-service treatment for his right knee disorder at a private clinic from the late 1970s through the 1980s. VA requested that the Veteran provide copies of such records or an authorization to obtain them. In May 2014, the Veteran indicated these private medical records were lost because the clinic is no longer in service. The record next reflects VA medical x-rays taken from 1993 to 2000 concerning the Veteran's knees. In July 1993, the Veteran complained about pain and effusion. The VA examiner found probable old Osgood-Schlatter's disease in the right knee. In September 1994, the Veteran complained of medial line pain, and the VA examiner found questionable calcified density. In November 1994, the Veteran complained that his right knee was swelling, and the VA examiner found some degree of degenerative changes. In February 2000, the Veteran complained of pain/swelling but no trauma. The VA examiner found degenerative changes. Thereafter, in his January 2005 claim application, the Veteran indicated that he had a bad case of arthritis and passing out when coughing, and that these disabilities began in May 1990 and October 2004. In a January 2005 VA Medical Report, the Veteran indicated that in the 30 days prior to his interview, he experienced medical problems at no time and had no chronic medical problems that interfered with his life. In a June 2009 Houston VA Medical Center exam, the Veteran was diagnosed with osteoarthritis of both knees, and he received a bilateral knee cortisone injection. In July 2009, the Veteran indicated in a SSA report that he was disabled because of arthritis of knees, and reported multiple times to an SSA officer that such disorder began in June 2008. With respect to the service connection claim on a direct basis, the Board finds that the opinion of the March 2015 VA examiner is persuasive and probative evidence against the claim for right knee service-connection because the opinion is based on a review of relevant evidence in the file and supported by an articulated medical rationale. See Nieves, 22 Vet. App. at 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The Board's opinion request was submitted to the VA examiner which noted that the Veteran received in-service treatment for right leg trauma and right knee contusion in February 1975 and April 1976, and that while the March 2010/June 2014 VA examiner described the July 1993, September 1994, and November 1994 x-rays as "normal," x-rays showed probably old Osgood-Schlatter's disease, soft tissue swelling, very minimal patellar spurring, and degenerative changes. In reaching the March 2015 opinion, the examiner found that the Veteran's current right knee disorder was less likely as not incurred in or caused by service. The examiner noted that the Veteran was seen once in service for a minor knee contusion, and that there was never a follow-up. The examiner maintained that there was no indication in the examination in service of enough of a knee injury to cause degeneration. The examiner also noted that osgood-schalatter does not affect the knee joint. The examiner maintained that there were no related symptoms of this condition in the service anyway. An evaluation of the probative value of medical opinion evidence is based on the medical expert's examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the Board finds that the March 2015 medical opinion is highly probative, given the examiner's review of the Veteran's records, his knowledge and skill in analyzing the data, and his well-reasoned analysis. The Board notes that the only contrary opinion of record comes from the Veteran himself. While the Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a broken bone, see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), as to the specific issue in this case, the etiology of osteoarthritis of the knees falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of knee pain, any actual diagnosis requires objective testing to diagnose, because knee pain can have many causes. See Id. at 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Significantly, determining the precise etiology of the Veteran's osteoarthritis is not a simple question, as there are conceivably multiple potential etiologies of the Veteran's disorder in his knees. Ascertaining the etiology of osteoarthritis requires the consideration of multiple factors, as well as knowledge of how those factors interact with the mechanics of the knee joints. In this case, the facts are complex enough that the Veteran's intuition about the cause of his osteoarthritis is not sufficient to outweigh the opinion of the expert who carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.") The Board notes that the mere fact of an in-service injury is not enough. There must be chronic disability resulting from such injury. Here, the medical opinion evidence indicates that there is no relationship between the current right knee disability and the Veteran's in-service knee trauma. The Board has also considered whether presumptive service connection for chronic disease is warranted under 38 C.F.R. § 3.309(a), and the Board has considered the theory of continuity of symptomatology under 38 C.F.R. § 3.309(b). However, the evidence fails to demonstrate that arthritis of the right knee at least as likely as not manifested to a compensable degree within one year of the Veteran's discharge from service in November 1976. In this regard, the first medical record indicating the presence of degenerative changes of the knee was in 1994. While the Veteran contends that he was treated for knee pain in the late 1970s, for reasons set forth above, he is not competent to opine that he had arthritis, much less arthritis to a compensable degree within one year of his discharge from service because arthritis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Moreover, statements from the Veteran and other lay statements suggest that the Veteran was not advised that he had arthritis of the knee until the 1990s. See January 2005 claim application, July 2009 statement from the Veteran's sister, and July 2009 statement from the Veteran. Also, any relationship between the current knee disorder and symptoms of knee pain experienced over the years must be established by medical evidence because knee pain may be due to many different causes thereby rendering the question of causation a matter of medical complexity requiring medical expertise to resolve. Here, there is no medical opinion evidence that shows such relationship. Thus, presumptive service connection based on a chronic disease and entitlement to service connection based on a theory of continuity of symptomatology are not warranted. 38 U.S.C.A. §§ 1110, 1131, 1112; 38 C.F.R. §§ 3.307, 3.309. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the claim. Accordingly, service connection is not warranted for a right knee disorder. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a right knee disorder is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs