Citation Nr: 1605471 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 11-01 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected bilateral hip disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2000 to January 2001. This appeal is before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which, in part, denied service connection for bilateral retropatellar pain syndrome (claimed as bilateral knee condition). In July 2015, the Board remanded this case for a videoconference hearing. The Veteran testified before the undersigned Veterans Law Judge at a November 2015 videoconference hearing, and a transcript of this hearing is of record. As such, the Agency of Original Jurisdiction (AOJ) complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record was left open for 60 days for additional evidence, but the Veteran did not submit any additional evidence. FINDING OF FACT The Veteran's bilateral knee disability is not related to his service-connected bilateral hip disability, and was not incurred in and is not related to active duty service. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability, to include as secondary to service-connected bilateral hip disability, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, required notice was provided in a July 2010 letter. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained. Also, the Veteran was provided a VA examination in August 2010 with addendum opinions in November 2010 and December 2010. For the reasons that will be disucussed in more detail in the analysis section below, this examination, its associated report, and the addendum opinions, taken together, are adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection 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 requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as arthritis of the knee, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. §§ 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be 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 (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran claims that his bilateral knee disability is secondary to his service-connected bilateral hip disability. In addition, he addressed the in-service prong for direct service connection in his VA Form 9, where he noted that he was not allowed to run, march, or stand for any extended period of time during service and was placed on light duty. However, his limitations of duty were as a result of his bilateral hip condition, not for any knee disability. In January 2005 at a rheumatology evaluation, the Veteran reported that his right hip pain radiated to his right knee during service and that eventually he began to have symptoms on the left side as well. Additionally, at his November 2015 videoconference hearing, he stated that he experienced knee pain in service but forgot about it after the initial diagnosis. Service treatment records do not reflect any complaints, symptoms, treatments, or diagnoses of any knee conditions, contrary to the Veteran's reference to an initial diagnosis and pain in-service. In fact, reports of medical history for enlistment in June 1999 and for his Physical Evaluation Board regarding his hips in September 2000 reflect that the Veteran denied lameness or "trick" or locked knees. No knee problems were reported by the Veteran or noted by the examiner. VA Treatment Records from April 2004 to April 2010 reflect that the Veteran reported knee pain in the course of treatment for his bilateral hip pain. When he went to the Emergency Department in April 2004 for hip pain, he reported that the pain radiated to the knees. However, at a May 2004 orthopedics consultation for bilateral hip pain, he denied any knee pain. The following month, he reported occasional bilateral knee pain and was assessed with bilateral knee pain, although an examination revealed unremarkable knees. In January 2005 at a rheumatology clinic, the Veteran reported that he had aches in his knees without much predictability, but no diagnosis was provided for his knees. In April 2010, he reported an increase in frequency of knee pain. At an August 2010 VA examination, the Veteran reported that he had bilateral knee pain during boot camp but that it was not addressed by the military, which concentrated on his bilateral hip condition instead. He also reported current symptoms of dull ache to occasional moderate pain associated with popping and cracking in both knees. An examination found tenderness, no objective evidence of pain or painful motion, normal strength and gait, and no evidence of abnormal weightbearing. As such, the examiner diagnosed the Veteran with retropatellar pain syndrome. He then opined that the Veteran's bilateral knee disability was less likely as not related to his service-connected bilateral hip disability. The rationale was based upon the fact that there was no history of any knee problems during service, that no abnormal gait was noted during the examination, and that he could not see any extra added stress on his knees during gait. Additionally, the examiner referred to the 2004 rheumatology evaluation for arthralgias, which was negative. Furthermore, the examiner stated that the Veteran's previous automechanic job created a lot more physical stress on his knees, which was probably causing the chronic mechanical problems. A November 2010 VA addendum opinion included a review of the claims file, CAPRI documents, and the August 2010 examination report. The examiner noted that the Veteran reported bilateral knee pain while in-service, but that after reviewing the complete service treatment records, he could only find information on the Veteran's right hip pain and bilateral groin pain. The examiner opined that it was less likely as not that the Veteran's current bilateral knee disability was related to his service-connected bilateral hip disability based on the August 2010 examination, which revealed mild patella femoral pain findings, and x-ray that revealed unremarkable knees. Furthermore, the examiner stated that the only two ways the Veteran's hips could cause bilateral knee problems were (1) an antalgic gait or (2) weakness in his quadriceps muscles in which their origins were attached to the hip region. He explained that both of these situations could cause abnormal forces and alter the biomechanical function at the patellar femoral joint regions. However, neither of these was present. Additionally, there was no finding on examination of any other significant abnormal forces noted from his hips that would cause biomechanical problems with the patellar femoral joints. He also noted the Veteran's occupation in both the restaurant business, which would involve a lot of prolonged standing, and as an automobile mechanic for several years, which would involve a lot of squatting, bending, and being put in awkward positions. In December 2010, another VA addendum opinion stated that it was less likely as not that the Veteran's bilateral knee disability was aggravated beyond its natural progression by his service-connected bilateral hip disability based upon the same rationale as the November 2010 addendum opinion. A March 2011 VA treatment record from a routine examination reflects that the Veteran complained of multiple orthopedic issues, including bilateral knee pain. Although the Veteran contends that VA doctors provided a positive nexus opinion, upon a complete review of the VA treatment records, there is no indication of such in the record. After review of all of the evidence of record, lay and medical, the Board finds that the Veteran's service connection claim must be denied. Although there is a current diagnosis of bilateral retropatellar pain syndrome and the Veteran is service-connected for his bilateral hip disability, the Board finds that the preponderance of the evidence is against his claim that the service-connected bilateral hip disability caused or aggravated the bilateral knee disability. The VA examiner, in his August 2010 VA examination report and November 2010 and December 2010 addendum opinions, found that there was no evidence that the Veteran's claimed bilateral knee disability was aggravated or caused by the service-connected hip disability. He clearly explained how a bilateral hip disability could cause a bilateral knee disability, but further explained that those situations were not shown by the evidence. The Board acknowledges the Veteran's contentions that his bilateral knee disability is directly related to his service-connected bilateral hip disability. However, as a lay person the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder involving the knees. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Under the circumstances of this case, the determination of the nature or etiology of his bilateral knee disability involves medically complex disease processes because of their multiple possible etiologies, require specialized testing to diagnose (such as x-rays or MRIs), and manifest symptomatology that may overlap with other disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, the Veteran is not competent to opine as to any medical nexus between his current bilateral knee disability and the service-connected bilateral hip disability. As such, there is no competent, probative, or persuasive evidence contradicting the VA examiner's opinion as to the nexus element. In addition, the Board notes that although the Veteran contends that his bilateral knee disability is directly related to his service-connected bilateral hip disability, he also addresses knee pain during active duty service, thus appearing to argue direct service connection. Although the above VA examination and addendum opinions address secondary service connection, the examiner does not provide a nexus opinion regarding direct service connection. Under 38 C.F.R. § 3.159(c)(4), in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (B) establishes that the veteran suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, despite the Veteran's contention that his knee pain began in service, he did not complain of or receive treatment for his knees during active duty service, although he did seek treatment for his hips and left groin pain. Additionally, he did not report any issues with his knees in his September 2000 Report of Medical History. In fact, the evidence of record demonstrates that he did not complain of knee pain until 2004. Indeed, the lack of complaints for about three years, and the lack of a diagnosis for about nine years, is a significant factor that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). Additionally, the evidence does not indicate or even suggest that the claimed bilateral knee disability may be associated with the knee pain allegedly experienced in service. Thus, the Board has determined in this instance that a VA opinion regarding direct service connection is not required. Furthermore, despite the Veteran's contentions of bilateral knee pain since service, the disability at issue in this case is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that at the November 2015 videoconference hearing, the Veteran requested a new VA examination due to the passage of time. However, the duty to obtain a new examination is triggered when the available evidence of record indicates that the previous examination no longer reflects the current state of the Veteran's disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). There is no duty to remand simply because of the passage of time. Id. As current disability is not at issue and as the Veteran has not alleged that the previously provided VA examination was inadequate in any way, the Board finds it unnecessary to remand for a new VA examination. Based on the foregoing, the Board finds that the Veteran's bilateral knee disability was not caused by or related to active duty service or his service-connected bilateral hip disability. Accordingly, the claim for service connection for a bilateral knee disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for bilateral knee disability, to include as secondary to service-connected bilateral hip disability, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs