Citation Nr: 1606996 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 09-08 189 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral knee disability (claimed arthritis of the knees). 2. Entitlement to service connection for a bilateral hand disability (claimed arthritis of the hands). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from July 2003 to March 2004 and from January 2005 to August 2006. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the RO. The Veteran testified at a Board video-conference hearing held in February 2013 before a Veterans Law Judge (VLJ). A transcript of that hearing has been made a part of the record. The Board notes that the VLJ who conducted the February 2013 hearing has since retired. So, pursuant to 38 U.S.C.A. § 7107(c) and 38 C.F.R. §§ 20.707 , 20.717, the Veteran was informed of his right to have another hearing before a different Veterans Law Judge who would ultimately decide his appeal. In December 2015, the Veteran responded that he did not want another hearing and requested that his claim be decided based on the evidence of record. The Board remanded these issues in June 2013 for additional development. The development has been completed and the case has been returned to the Board for appellate consideration. The Veteran's appeal originally included the issues of entitlement to service connection for bilateral pes cavus and costochondritis. During the pendency of the appeal, the RO, in a September 2013 decision, granted service connection for bilateral pes cavus and costochondritis and assigned 10 percent ratings, respectively, for the disabilities, effective on August 21, 2006. Therefore, his appeal concerning the issues of service connection for bilateral pes cavus and costochondritis have been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). Finally, the Board acknowledges that the Veteran submitted a notice of disagreement (NOD) with regard to a February 2015 rating decision wherein the AOJ, in pertinent part, denied the claim for entitlement to service connection for blackouts, claimed secondary to posttraumatic stress disorder (PTSD). The Board's review of the claims file reveals that the AOJ is still taking action on this issue. As such, the Board will not take action on that issue at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. This appeal was processed using the VBMS paperless claims processing system. FINDINGS OF FACT 1. The Veteran's current bilateral knee disability is not attributable to disease or injury sustained during his period of service. 2. The Veteran's current bilateral hand disability is not attributable to disease or injury sustained during his period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C.A. §§ 1110, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for a bilateral hand disability are not met. 38 U.S.C.A. §§ 1110, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claims. VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by letter sent to the Veteran in March 2009. The claim was last adjudicated in September 2013. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claims. The Veteran has not identified any other outstanding records that are pertinent to the issues currently on appeal. In addition, the Veteran was afforded multiple VA examination in connection with his claims. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations and the medical opinions obtained in August 2013 are adequate with regard to the issues on appeal, as the opinions were predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiners considered all of the pertinent evidence of record, including the contentions and statements of the Veteran and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Further, the Board is aware that this appeal was, most recently, remanded by the Board in June 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the Agency of Original Jurisdiction schedule the Veteran for VA examination to address the etiology of the Veteran's bilateral knee and bilateral hand disabilities, taking into account the Veteran's reported history. Here, the examiner offered an opinion in August 2013 that addresses the etiology of his bilateral knee and bilateral hand disabilities, with due consideration given to the Veteran's reported history of in-service symptoms. Accordingly, the Board finds that there has been substantial compliance with its previous remands and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). (CONTINUED ON NEXT PAGE) Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is a chronic disease. 38 U.S.C.A. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disability was incurred while engaging in combat. The Veteran contends that he has arthritis of the bilateral knees and hands that onset as a result of his periods of service. A December 2003 service treatment record documents an assessment, in pertinent part, of knee pain. Otherwise, the service treatment records contain no documentation of, complaints of or treatment for a bilateral knee or bilateral hand disorder. Subsequent to service, private and VA medical records verify that the Veteran has current bilateral knee and bilateral hand disabilities. For example, a March 2007 VA treatment records documents the Veteran's complaint of knee pain. On examination the assessment was cellulitis, possibly septic arthritis on the left, likely related to CA-MRSA. A March 2007 addendum reflects that there was no joint fluid to aspirate from the left knee. Thus, the examiner found the disorder was less likely septic arthritis. Accordingly, the Veteran was treated for cellulitis. The report of the August 2013 VA knee and lower leg conditions examination documents the Veteran's report that in 2007 (after the service) he had sudden onset of bilateral knee pain, left more than right. At the time he was working as an installer of seating in stadiums. He was treated for a soft tissue cellulitis and strain. Since then he has had daily bilateral knee pain. On examination, the diagnoses were left knee cellulitis and bilateral knee strain. X-ray findings showed no evidence of degenerative or traumatic arthritis. The report of the August 2013 VA hand and finger conditions examination documents the Veteran's contention that after the service he starting to have issues with bilateral hand pain, worse in the right hand. He had pain with overuse and pain with grip. On examination the diagnosis was bilateral hand tendosynovitis. X-ray findings showed negative bilateral hand radiographs. There was no evidence of acute fracture or subluxation. The joint spaces were preserved and bone density was maintained. There was no soft tissue swelling or soft tissue deposition process evident. No erosion is evident. Thus, the remaining inquiry is whether the bilateral knee and the bilateral hand disabilities is related to service. On this record, the Board finds that service connection for the current bilateral knee and the bilateral hand disabilities is not warranted. Though the Veteran has current disabilities, the weight of the evidence, lay and medical, does not demonstrate a link between the onset of the current bilateral knee and the bilateral hand disabilities to disease or injury sustained during a period of service. To that end, in the August 2013 report of VA examination, the physician opined that the bilateral knee and the bilateral hand disabilities were less likely than not related to service. The physician explained that there was no evidence of significant trauma or chronicity of disorders starting in service. Rather, review of the records demonstrated that the bilateral knee and bilateral hand disabilities had abrupt onset after service with specific etiologies that were unrelated to service. The Board finds that this VA opinion was based on a thorough review of the medical records, taking the Veteran's history and performing examination. The examiner indicated that a review of the claims file was conducted. While the service treatment records noted one complaint of knee pain in service, at the of the examination the Veteran reported the sudden onset of knee pain after service in 2007. To the extent there may have been some knee symptoms in service, the examiner addressed the Veteran's current complaints regarding the knee and the Veteran more recent reports of onset of symptoms after service and concluded that that was no evidence of significant trauma of chronicity since service. This conclusion is probative as it is based on accurate facts presented by both the service treatment records and the recent assertions made by the Veteran at the time of the VA examination in August 2013. Also, notably, there is no competent or credible evidence or opinion that even suggests that there exists a medical relationship, or nexus, between the current bilateral knee and the bilateral hand disabilities and a period of the Veteran's service. Additionally, there is no evidence of knee or hand arthritis. Thus, the presumptive provisions are not applicable. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. The only other evidence of record supporting this claim is the various general lay assertions. In this case, the Board finds that the Veteran was competent to state that he has bilateral knee and bilateral hand disabilities as such is confirmed by the record. However, he is a lay person and is not shown to be competent to establish that his bilateral knee and bilateral hand disabilities is due to disease or injury sustained during service. In this case, the Veteran is not competent to offer an opinion regarding the etiology of his bilateral knee and bilateral hand disabilities. The question regarding the etiology of such disabilities involves the ruling in or out of multiple potential etiologies and is complex medical issue that cannot to be addressed by a layperson.. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For the foregoing reasons, the Board finds that the claims of entitlement to service connection for a bilateral knee disability and a bilateral hand disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a bilateral knee disability (claimed arthritis of the knees) is denied. Entitlement to service connection for a bilateral hand disability (claimed arthritis of the hands) is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs