Citation Nr: 1545871 Decision Date: 10/28/15 Archive Date: 11/02/15 DOCKET NO. 10-15 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right knee disorder, and if so, whether service connection is warranted. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from November 1989 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision which denied the benefits sought on appeal. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2014. The Board, in a decision which reopened a previously denied service connection claim for a left knee disorder, then remanded the above claims for further development in September 2014, and they now return to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran did not appeal a March 1998 rating decision which denied service connection for a low back disability, but evidence received since this rating decision raises a reasonable possibility of substantiating the claim. 2. A current right knee disability was not incurred in or aggravated by service. 3. A current left knee disability was not incurred in or aggravated by service. 4. A current right ankle disability was not incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The March 1998 rating decision which denied service connection for a right knee disability is final, but new and material evidence has been received to reopen the claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2015). 2. The criteria for service connection for a right knee disability have not been met. 38 C.F.R. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 3. The criteria for service connection for a left knee disability have not been met. 38 C.F.R. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 4. The criteria for service connection for a right ankle disability have not been met. 38 C.F.R. § 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2015). Here, the Board initially notes that it is reopening her previously denied claim for service connection for a right knee disability, and therefore any error in notice with respect to the criteria for reopening such claims was harmless error. Moreover, the Veteran was provided with the relevant notice and information in a July 2015 letter regarding how to establish service connection. Her claims were then readjudicated in a September 2015 supplemental statement of the case (SSOC), and she has not alleged any notice deficiency during the adjudication of her claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran also had a hearing before the Board. The hearing was appropriately conducted as the presiding VLJ duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In light of the above development of the claims, there has been substantial compliance with the Board's September 2014 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict compliance with the Board's remand directives is required under Stegall). II. New and Material Evidence Historically, the RO denied service connection for bilateral knee conditions in a March 1998 rating decision. The basis of the denial was that a current disability had not been established. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) . The language of 38 C.F.R. § 3.156(a) creates a low threshold for reopening a claim, and the phrase "raises a reasonable possibility of substantiating the claim" is interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additional evidence has been received since the March 1998 rating decision, including a September 2014 Disability Benefits Questionnaire (DBQ) completed by the Veteran's physician. This DBQ reflects a diagnosis of right knee patellofemoral pain syndrome. This evidence is new, as it was not part of the record at the time of the prior rating decision. It is also material, as it relates to the basis of the prior denial, namely whether the Veteran has a current right knee disability. When viewed with the other evidence of record, this diagnosis raises a reasonable possibility of substantiating the Veteran's claim for service connection for a right knee disability. Therefore, the claim is reopened. The RO denied the Veteran's claim of service connection for a right knee disability on the basis that new and material evidence had not been received to reopen a prior final decision. See September 2015 SSOC. The decision above reopens the claim, finding that new and material evidence has been received. Where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from adjudication of the claim. Hickson v. Shinseki, 23 Vet. App. 394 (2010). In this case, the Veteran has provided arguments addressing her claim on the merits through her hearing testimony before the Board. She also received notice regarding how to substantiate a service connection claim on the merits in July 2015. Therefore, given that the Veteran had adequate notice of the applicable regulations and has had the opportunity to submit argument and evidence on the merits of her claim, she would not be prejudiced by the Board's review of the merits of the claim at this time. Bernard v. Brown, 4 Vet. App. 384 (1993). III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). A. Right Knee With respect to element (1) of service connection, a current disability, the September 2014 DBQ completed by the Veteran's physician reflects a diagnosis of patellofemoral pain syndrome. Therefore, that element has been satisfied. With respect to element (2), in-service incurrence of a disease or injury, service treatment records reflect complaints of bilateral knee pain and a diagnosis of patellofemoral tracking syndrome in January 1990. In December 1990, the Veteran complained of bilateral knee swelling. Therefore, this element has also been met. With respect to element (3), a nexus between the current disability and service, the Veteran underwent a VA examination in June 2015. The examiner noted the diagnosis of patellofemoral pain syndrome from service, but stated that there was no arthritis noted on her current x-rays, and no pathology found in the right knee. There was no evidence of a chronic or ongoing medical condition associated with service. Notably, the Veteran also underwent a VA examination in July 2009. That examiner stated that the Veteran's knee swelling was actually peripheral edema due to hydrostatic pressure with possible peripheral venous insufficiency. Consistent with this, the Veteran also had morbid obesity and a short stature, and she reported swelling goes down if she elevated her legs. The symptomatology she complained of had no bearing on the joint itself, and examination of the knee was normal. In sum, neither the July 2009 nor the June 2015 VA examiner found that a current right knee condition was present, and therefore could not relate such a condition to service. Although the September 2014 DBQ establishes a current diagnosis of patellofemoral pain syndrome, McClain v. Nicholson, 21 Vet. App. 319, this physician did not relate that condition to service. Indeed, there is no competent medical opinion in the record attributing that condition to service. While the Board has considered the Veteran's own statements made in support of her claim, she has not demonstrated any specialized knowledge or expertise to indicate she is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of patellofemoral pain syndrome falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In addition, the fact that the Veteran was diagnosed with patellofemoral pain syndrome during the appeal period and during service, by itself, is not sufficient to establish service connection. Patellofemoral pain syndrome is not among those conditions listed as "chronic" under 38 C.F.R. § 3.309(a), and therefore, while the condition was established in service, subsequent manifestations of it are not entitled to service connection under 38 C.F.R. § 3.303(b). Similarly, to the extent that she has asserted a continuity of right knee symptomatology since service, service connection based upon such a theory is applicable only to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In light of the above, a link between any current right knee condition and service has not been established, and therefore service connection for a right knee condition is not warranted. B. Left Knee With respect to element (1) of service connection, a current disability, a July 2009 VA examination diagnosed minimal degenerative joint disease. A September 2014 DBQ from the Veteran's private physician diagnosed patellofemoral pain syndrome. A June 2015 VA examination noted arthritis documented on x-ray imaging. Therefore, this element has been satisfied. With respect to element (2), an in-service incurrence of a disease or injury, the Veteran complained of bilateral knee pain in January 1990 and was diagnosed with patellofemoral tracking syndrome. In February 1990, she reported slipping and falling and injuring her left knee. She was evaluated and fitted for a brace. In October 1990, she complained of left knee pain dating back to February, and was again assessed with patellofemoral pain syndrome. A February 1991 bone scan was within normal limits, and the Veteran was seen for follow-up visits for patellofemoral pain syndrome in March 1991 and May 1991. In July 1992, she complained of a swollen left knee and was prescribed a neoprene brace. There were no additional documented findings or complaints during service, and the Veteran's August 1996 separation examination was normal. With respect to element (3), a nexus between the current condition and service, the June 2015 VA examiner that the minimal degeneration was "exactly that - minimal," and that such findings found after 10 years post-service were not related to service, especially when compounded by the Veteran's obesity. There is no competent medical opinion to refute this conclusion or to otherwise relate current arthritis to service. In addition, while patellofemoral pain syndrome was diagnosed in the September 2014 DBQ, that physician did not relate the condition to service, and it was not diagnosed by any VA examiner. Again, the Board has considered the Veteran's own statements made in support of her claim, but she has not demonstrated any specialized knowledge or expertise to indicate she is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of arthritis falls outside the realm of common knowledge of a lay person. As noted above, current manifestations of patellofemoral pain syndrome are not entitled to service connection based upon diagnosis of the condition in service or through assertions of continuity of symptomatology. Arthritis, however, is among those conditions listed as "chronic" under 38 C.F.R. § 3.309(a), and therefore service connection may be established through one of these mechanisms. However, arthritis was not diagnosed in service, despite numerous examinations and documented symptoms at the time by the Veteran's treating physicians. The Veteran also had a negative bone scan in February 1991. Therefore, there is not the required combination of manifestations to sufficiently identify arthritis as a disease entity in service. See 38 C.F.R. § 3.303(b) ("This rule does not mean that any manifestations of joint pain...in service will permit service connection of arthritis...first shown as a clearcut clinical entity at some later date."). During her June 2014 hearing, the Veteran asserted that she had experienced continuous knee symptoms since service. However, her service records reflect complaints of left knee problems only through July 1992. From that point through the end of her period of service, including her August 1996 separation examination, no complaints were noted. Significantly, the Veteran was seen on several occasions for other orthopedic complaints, namely relating to her back and shoulder. Given her prior history of reporting knee complaints, and her continued reporting of other orthopedic conditions, it appears that she was reporting all of the symptoms she was experiencing at the time. Therefore, the lack of knee complaints after July 1992 indicates that no such symptoms were being experienced at the time. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Even if the Board accepted the Veteran's assertion that she had continuous knee symptoms since service, she is not necessarily competent to establish a link between the continuous symptomatology and a current underlying condition of arthritis. See McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). Indeed, the record contains instances when the Veteran reported knee symptoms, but the accompanying objective testing was negative for arthritis. See February 1991 Service Treatment Records (noting a negative bone scan); January 1998 VA examination (noting negative x-rays). Therefore, the evidence does not establish that the Veteran had continuous knee symptomatology since service due to arthritis. C. Right Ankle With respect to element (1) of service connection, a current disability, a September 2014 DBQ completed by the Veteran's physician reflects a diagnosis of right ankle tendonitis. Therefore, that element has been satisfied. With respect to element (2), in-service incurrence of a disease or injury, service treatment records show the Veteran sought treatment in October 1992 for a right ankle sprain she sustained three weeks earlier. The examination and accompanying x-rays were within normal limits. Nevertheless, this element has also been met. With respect to element (3), a nexus between the current disability and service, the Veteran underwent a VA examination in July 2009. The examiner stated that the Veteran's symptomatology was extremity edema, and that she had no complaints specific to the ankle joint itself. Examination of the ankle was normal. The accompanying x-rays revealed a small enthesophyte at the insertion of the Achilles tendon. An additional VA examination was conducted in June 2015. However, the examiner stated that examination of the right ankle revealed a normal joint, without any indication of any identified arthritic change from 2009, and that there was no evidence of a chronic or ongoing medical condition associated with service. In sum, neither the July 2009 or June 2015 VA examiner found that a current right ankle condition was present, and therefore could not relate such a condition to service. Although the August 2014 DBQ establishes a current diagnosis of tendonitis, this physician did not relate that condition to service, and there is no other competent medical opinion in the record attributing that condition to service. Again, the Board has considered the Veteran's own statements made in support of her claim, but she has not demonstrated any specialized knowledge or expertise to indicate she is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of tendonitis falls outside the realm of common knowledge of a lay person. In addition, to the extent that she has asserted a continuity of right ankle symptomatology since service, service connection based upon such a theory is applicable only to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tendonitis is not among those listed conditions. In light of the above, a link between any current right ankle condition and service has not been established, and therefore service connection for a right ankle condition is not warranted. ORDER The claim for service connection for a right knee disability is reopened, but service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a right ankle disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs