Citation Nr: 1602900 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 08-39 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disorder, claimed as patella tendonitis, to include as secondary to the service connected right leg disability. 2. Entitlement to service connection for a back disorder, claimed as secondary to a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran submitted a notice of disagreement (NOD) in March 2008, a statement of the case (SOC) was issued in December 2008, and the Veteran perfected his appeal with the timely filing of a VA Form 9 (substantive appeal) in December 2008. In February 2015, the Board remanded the claims on appeal and an additional claim for service connection for a deviated nasal septum. In a May 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for deviated nasal septum. As the May 2015 rating decision fully granted that particular claim, that issue is neither in appellate status nor before the Board. The issues were last before the Board in February 2015. The Board finds that there has been substantial compliance with the directives of this latest Remand decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). That development having been completed, the claim is now ready for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and "Virtual VA" paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration these electronic records (electronic claims file). FINDINGS OF FACT 1. The preponderance of the evidence shows that a left knee disorder was not present in service or until many years thereafter and is not related to service or to an incident of service origin, or a service-connected disability. 2. The preponderance of the evidence shows that a lower back disorder was not present in service or until many years thereafter and is not related to service or to an incident of service origin, or a service-connected disability. CONCLUSIONS OF LAW 1. A left knee disorder was not incurred in or aggravated by service, and is not due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 2. A lower back disorder was not incurred in or aggravated by service, and is not due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant 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 claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Correspondence from the RO dated November 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The issue was last readjudicated in a May 2015 supplemental statement of the case (SSOC). Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that evidence necessary for equitable resolution of the issue has been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). His STRs, post-service VA and private treatment records have been added to the record. The Veteran's VBMS and Virtual VA records have been reviewed. In addition, pursuant to the instructions of the February 2015 Board Remand decision, the Veteran was provided with a VA medical examination in April 2015 to supplement the recognized inadequacies present in previous VA examinations. The April 2015 VA examination report is adequate because it is based upon consideration of the relevant facts particular to this Veteran's medical history, describes the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contains reasoned explanations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. The Veteran has not identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. Lastly, as noted above, in February 2015 the Board remanded this claim for additional development. The Board is satisfied that there has been substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the Veteran the right to substantial, but not strict, compliance with that order). In this respect, in response to the February 2015 remand, a new VA examination was conducted in order to address direct and secondary theories of causation for both of the Veteran's remaining issues on appeal. See April 2015 VA examination. Thereafter, a supplemental statement of the case (SSOC) was issued in May 2015. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection Applicable Laws Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established 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(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between a sleep disorder and hypertension to a service connected disability, 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). Therefore, medical evidence will be required to address the question of whether the Veteran's service-connected disabilities caused or aggravated his sleep disorder and hypertension. Certain chronic diseases, such as arthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred in service, even though there is no evidence of such a disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Facts Service treatment records were reviewed and indicate that at his August 1977 pre-service screening, the Veteran reported swollen knee joints stemming from high school football injuries, but they had been "treated and resolved, no problems since." See August 1977 Report of Medical History. The subsequent examination of the bilateral knees reflected "no weakness, deformity or limitation." Id. The Veteran also reported "occasional" knee pain during exercise at examinations in June 1980, April 1981, and May 1982. See May 1982 Report of Medical History; see also June 1980 Report of Medical History, see also April 1981 Report of Medical History. Service medical records reflect that "no treatment [was] sought" for the bilateral knee pain as it was "not disabling." See May 1982 Report of Medical History. At subsequent examinations in July 1992 and May 1994, the Veteran reported that his health was "good" and did not mention any left knee or back related issues. See July 1992 Report of Medical History; See also May 1994 Report of Medical History. Shortly after the Veteran's discharge from active-duty, he was afforded a VA examination in November 1999. See November 1999 VA examination. The Veteran reported a history of right knee pain related to a sports injury, and identified that his left knee also swells when running, but "more so of the right knee." Id. The examiner also observed that the Veteran's gait was "normal" and, following an examination, opined that his left knee was "unremarkable." Id. Regarding his back, the examiner noted that there was "no history of any lower back problems at this time." Id. Private treatment records reflect that the Veteran sought treatment for left knee pain in 2004 and underwent an MRI. See June 2004 Advanced Medical MRI report. There was no left knee diagnosis indicated in the report, rather the impression noted an abnormal signal in the cortex that was "probably an osteochondral defect," and a possible meniscal tear that was "most likely" a false positive. Id. Follow-up treatment in July 2004 notes that he had experienced left knee pain intermittently "over the last 4 months." See July 2004 KKT note. An examination revealed x-rays of the left knee "within normal limits," and the Veteran was diagnosed with gonarthrosis and left patellar tendonitis and sent to physical therapy. Id. A May 2007 treatment note also indicates that the Veteran's x-rays of the left knee were "within normal limits". See May 2007 KKT note. The Veteran was noted as having an antalgic gait and was diagnosed with IT band tendonitis of the left knee. Id. The Veteran also underwent an MRI in May 2006 for pain in his lower back and right side. See May 2006 Advanced Medical MRI report. The MRI revealed "posterior protrusion" of L5-S1 disc material that is consistent with "desiccation and degeneration" and bilateral facet hypertrophy at L4-L5 and L5-S1. Id. The Veteran has also been afforded multiple VA examinations for his lower extremities. During a December 2007 VA examination for his right leg disability, the Veteran reported that he sometimes feels unstable due to right leg weakness, and that causes "a tendency to bear weight on the left knee." See December 2007 VA examination. The examiner observed that the Veteran had an antalgic gait, but that there was no evidence in the feet of abnormal weight bearing. Id. The Veteran was afforded a VA examination for his left knee in October 2012. See October 2012 VA examination. Following a review of the Veteran's claim file, the examiner conducted an in-person examination and noted diminished movement and pain in both of the Veteran's knees. Id. The examiner identified treatment records which reflected a September 2007 diagnosis of IT band left patellar tendonitis and a 2007 left knee x-ray demonstrating that it was "within normal limits." Id. The examiner did not provide comment regarding direct service connection. Id. Regarding secondary service connection, the examiner concluded that the Veteran's excision of osteochondroma of the right femur and calcification excision of the right leg "would not affect the left leg." Id. As noted in the May 2014 Board remand, the October 2012 VA examiner did not provide a current left knee diagnosis, but did note that "he did not have evidence of left knee degenerative changes on x-ray." Id. The examiner also did not comment upon the connection between the right leg disability and the left knee disorders that were identified in the record. Id., see also May 2014 Board remand. The Veteran was next afforded a VA knee examination in November 2014. See November 2014 VA examination. As noted in the February 2015 Board remand, the examiner conducted an in-person examination and reviewed the Veteran's service records, but not his claims file. Id.; see also February 2015 Board remand. The examiner diagnosed the Veteran with a left knee strain, noting that the Veteran received "no treatment" during service. Id. The Veteran reported that the pain's "gradual onset" began during the Air Force Academy. Id. The examiner observed abnormal motion, and pain with "diffuse tenderness." Id. The examiner concluded that the Veteran's left knee condition was "less likely than not" related to service because there is no record of any "acute injury...or chronic complaints" of the left knee while he was on active duty. Id. The examiner further opined that the Veteran's current left knee disorder is "more likely due to typical senescent wear and tear over time since discharge." Id. However, as addressed in the February 2015 Board remand, the examiner failed to discuss the relationship between the Veteran's left knee condition and his right leg disability. Id.; see also February 2015 Board remand. The Veteran was most recently afforded a VA examination in April 2015 for both his back and left knee. See April 2015 VA examination. Following the review of the Veteran's entire claims file and an in-person examination, the Veteran was diagnosed with a lumbosacral strain. Id. The Veteran reported an onset of lower back pain beginning in 2006, stemming from prolonged standing. Id. The examiner observed abnormal motion with pain and tenderness as well. Id. The examiner also included an April 2015 x-ray excerpt which demonstrated a "normal appearance of the lumbar spine." Id. Regarding his left knee, the examiner provided a diagnosis of patellofemoral pain syndrome of the bilateral knees. Id. The Veteran reported that the onset of left knee pain was "approximately in 2006" and that pain has been chronic/recurrent since 2008. Id. As with prior examinations, abnormal motion and pain with tenderness was observed. Id. The examiner concluded that the Veteran's back and knee disorders were "less likely than not" related to his active-duty service or proximately caused by or aggravated (beyond a normal progression) by his service-connected right leg disability. Id. The examiner further explained that the Veteran has no alteration from his gait stemming from any lower extremity condition, and that even if he had an "intermittent" alteration, the service-connected right knee/leg disability "would and do not exert sufficient biomechanical force" to cause the Veteran's left knee or back conditions. Id. The examiner further opined that both the Veteran's current back and knee conditions are "life events," and that there is "no other event, injury or illness identified either in service or out of military service which would provide an etiology" for the disorders. Id. Analysis Given the evidence of record, the Board finds that service connection for the Veteran's knee or back disorders is not warranted on either a direct, presumptive, or secondary basis. Initially, the Board notes that there is no evidence in the record which demonstrates that any left knee or back disorder, including osteoarthritis, was manifested to any identifiable degree during service or within a year after. 38 C.F.R. § 3.309. Following service, the Veteran's medical records demonstrate a negative history for any knee or back pain until approximately 2004, nearly five years after service. See June 2004 Advanced Medical MRI report; see also May 2006 Advanced Medical MRI report; compare with November 1999 VA examination ("left knee unremarkable...no history of any lower back problems at this time.") As such, service connection for left knee or back degenerative arthritis on a presumptive basis is not warranted. Regarding direct service connection, the record does not show, nor does the Veteran contend that his back disorder began in service. See April 2015 VA examination; see also November 1999 VA examination. As for the Veteran's left knee disorder, the Veteran has a current diagnosis of patellofemoral pain syndrome and service treatment records reflect complaints of bilateral knee pain during service. Thus, the first and second elements under Shedden satisfied. Unfortunately, the third element, a causal nexus, is lacking. The Board finds that the April 2015 VA examiner conducted a thorough and detailed in-person examination and review of the Veteran's file and provided adequate rationale for the opinions that the Veteran's left knee and back disorders were not related to service. Specifically, the April 2015 examiner found that there was no evidence of any service-related disability or treatment of any left knee or back disorder during service or soon thereafter. Moreover, the examiner explained that the Veteran's current back and knee conditions were reflective of the wear and tear of "life events." For these reasons, the April 2015 opinion by the VA examiner is afforded great probative value and the Board finds that service connection cannot be awarded on a direct basis for either the Veteran's left knee or back disorders. With regard to the Veteran's claim that his left knee disorder is secondary to his service-connected right leg/knee disability, the April 2015 VA examiner specifically opined that the Veteran's left knee disorder was not caused by or aggravated by his right leg disability. As noted above, the April 2015 VA examiner observed that the Veteran's right leg/knee condition did not exert the necessary "biomechanical force on the left knee" to account for the current disorder, thus negating theories of proximate cause and aggravation. Regarding the Veteran's back disorder as secondary to the left knee disorder, the Board finds this issue rendered moot as the left knee is not service-connected, but in any event the examiner also commented on the same lack of necessary force to stemming from the lower extremities to cause the current back issues. In addition, the 2015 VA examiner postulated a likely alternative to the Veteran's left knee disorder, noting the impact of "life events". As the VA examiners, especially the April 2015 VA examiner, offered clear conclusions with supporting data as well as reasoned medical explanations, the Board accords great probative weight to their opinions. See Nieves-Rodriguez, supra. While the Veteran contends that his left knee disorder is secondary to his right leg/knee disability, the Board accords his statements regarding the etiology of these disorders little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation and aggravation of left knee patellofemoral pain syndrome, osteoarthritis, and tendonitis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In a case such as this, where the left knee disorders have multiple potential etiologies, expert testimony is necessary to establish causation. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, based on the foregoing, the Board finds that service connection for the Veteran's left knee and back disorders is not warranted on a direct or secondary basis. In reaching this 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. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a left knee disorder, claimed as patella tendonitis, to include as secondary to the service connected right leg disability, is denied. Entitlement to service connection for a back disorder, claimed as secondary to a left knee disorder, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs