Citation Nr: 1609889 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 09-38 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran had active service from March 1972 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In March 2013, the Veteran testified before the undersigned Veterans Law Judge during a video teleconference hearing; a transcript of the hearing is of record. This case was previously before the Board in July 2013. At such time, the Board remanded the Veteran's claim for additional development. This appeal is now being processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless systems. FINDINGS OF FACT A right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and arthritis did not manifest 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, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2007 letter, sent prior to initial unfavorable decision issued in July 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and considered. The Veteran has not identified or provided authorization to obtain any additional, outstanding records. In addition, the Veteran was afforded two VA examinations addressing the nature and etiology of his right knee disorder in March 2008 and October 2013. The Board finds that the October 2013 examiner's opinion provides a clear conclusion as to the etiology of the Veteran's right knee disorder with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, neither the Veteran nor his representative have maintained that the VA examination was inadequate. See Sickles v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Therefore, the Board finds that the October 2013 examination report is adequate to adjudicate the Veteran's service connection claim and no further examination is necessary. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to 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. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the March 2013 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal. Information was solicited regarding the current nature and etiology of the Veteran's claimed right knee disorder, including lay statements concerning any in-service injury, and the onset and continuity of symptoms. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. Moreover, the Board remanded the case in July 2013 in order to obtain additional treatment records and to afford the Veteran a new VA examination to address the nature and etiology of his right knee disorder. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Finally, the Board finds that there was substantial compliance with the July 2013 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In this regard, the July 2013 remand directed the AOJ to schedule the Veteran for an appropriate VA examination to address the nature and etiology of his right knee disorder. As noted above, the Veteran was afforded such an examination in October 2013. Furthermore, in accordance with the Board's directive to obtain updated records, the AOJ associated VA treatment records dated through April 2013 with the Veteran's claims file. Finally, in a July 2013 letter, the AOJ informed the Veteran of his opportunity to identify and provide authorization to obtain any outstanding private treatment records that were not already of record. However, to date, the Veteran has not responded. Accordingly, the Board finds that there has been substantial compliance with the remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, supra. Thus, with regard to the Veteran's claim for service connection for a right knee disorder, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis The Veteran contends that his current right knee disorder is the result of his military service. Specifically, he alleges that, in May 1975, he injured his knee while playing football. He contends that, following the injury, he began to experience pain in his right knee, and that his symptoms have continued since he was discharged from service. See March 2013 Hearing Transcript, Pg. 3-4. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). 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 incurrent in service. 38 C.F.R. § 3.303(d). "To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition to the requirements for service connection noted above, where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2015). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board must weigh any competent lay evidence and make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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 (1990). The Veteran's service treatment records reflect a number of complaints related to his right knee. In May 1975, the Veteran complained of pain in his right knee after it "gave out" on him while he was running during football. He said that, while was able to finish playing, his pain increased at night. The diagnostic impression was right knee pain, rule out a tear of the right lateral cartilage or the medial collateral ligament. He was given an ace wrap and told to decrease his activity. Two days later, he complained that he was unable to extend his right knee. Upon examination, the impression was a strain of the medial collateral ligament. In June 1975, the impression was changed to a lateral collateral ligament strain. In June and September 1975, he was given a profile against excessive walking, standing, or jumping for four weeks because of his right knee injury. In September 1975, the Veteran complained of feeling a sudden pop in his right knee and then constant pain. He was diagnosed with a recurrent strain of the right knee. In November 1975, the Veteran stated that his knee had improved, that it felt strong, and that it had not "given in." He stated that he felt pain only when he stood for long periods or after running. A week later, the Veteran expressed frustration over the "prolonged cause of pain. He was diagnosed with chronic knee. In January 1976, upon examination, the Veteran's right knee was "quite normal" with a "non-painful" range of motion. There was no joint tenderness, no instability, and no signs of a meniscus injury. The Veteran stated that he could walk long distances without pain and that only occasionally would his knee give in. A September 1978 periodic examination noted that the Veteran had full range of motion without crepitus or instability in either of his knees. The examiner noted that the Veteran had a history of a medial collateral ligament strain since May 1975 that was treated with an ace wrap, and that the Veteran had had pain in the knee ever since. On his December 1980 discharge report of medical history, the Veteran reported a history of a "trick" or locked knee. In the December 1980 discharge examination report, the examiner noted that the Veteran's lower extremities were normal. The examiner also noted Veteran's history of a collateral ligament strain in the right knee in May 1975, and that the Veteran was in a cast for one week and an ace bandage for two weeks. Finally the examiner noted that the condition had resolved. In connection with his claim for service connection, the Veteran underwent a VA examination in March 2008. During the examination, the Veteran reported that, in 1995 or 1996, he underwent surgery on his knee. He stated that he still suffered from intermittent pain. Upon examination, the Veteran's disorder was diagnosed as degenerative joint disease, status post medial collateral ligament strain, status post right knee arthroscopy. The examiner stated that she was unable to provide an opinion as to the etiology of the Veteran's right knee disorder because his post-service treatment records were not available for review. In May 2008, the Veteran's post-service treatment records were associated with his claims file. In July 1998, the Veteran was seen by Dr. B.M. after injuring his right knee while working for United Airlines in April 1998. The treatment record notes that he stepped off of a forklift and twisted his right knee. He stated that the pain in his knee had improved, but that it never fully subsided. When asked about his medical history, the Veteran reported that, in 1987 while working for the United States Postal Service, he also injured his right knee. However, he said that he recovered well from this injury. In August 1998, the Veteran right knee was assessed as "[s]uspect at least degenerative changes of the anterior horn of the lateral meniscus and positions of the medial meniscus. A tear at the periphery of the anterior horn of the lateral meniscus is possible." Additionally, the Veteran's physician noted a small effusion and "[s]uspect early degenerative changes, particularly the anterior aspect of the lateral compartment." In September 1998, the Veteran's physician recommended surgery in order to relieve his symptoms and problems. He underwent arthroscopic surgery in June 2000. In September 2000, the Veteran received treatment from Dr. B.M. after hitting the surgical area of his right knee on the side of a car. In his September 2009 substantive appeal, the Veteran argued that, following his in-service injury, his right knee became progressively worse "to the point of [an] accident at work where I hurt it again." He argued that had he not injured his knee in service, the subsequent post-service injuries would not have occurred. He stated that he did not seek treatment after service because his pain was "livable." In November 2011, the Veteran was seen by Dr. P.L., a VA orthopedic surgeon. The Veteran reported injuring his right knee while playing football in service. He stated that he had torn cartilage, that surgery was recommended, and that he had trouble with his knee, including ongoing feelings of instability and pain, since his discharge. He stated that as a result, he underwent arthroscopic surgery. The Veteran reported increased symptomatology including grinding, instability, and pain. Dr. P.L. ordered an MRI. In November 2011, he underwent an X-ray which revealed mild age-appropriate degenerative changes. In January 2012, he underwent an MRI which revealed chondromalacia patella with mild patchy lateral trochlear subchondral marrow edema; no definite evidence of an acute ligamentous or meniscal injury; and a small knee joint effusion with nonthickened supra and infrapatellar plica. In February 2012, the Veteran was again seen by Dr. P.L. The surgeon again noted the Veteran's in-service football injury, and that he resumed his military service and he declined to undergo surgery following the injury. After discussing the recent X-ray and MRI findings, the surgeon noted that the Veteran's chondromalacia patella likely "originated with his traumatic event years ago and proceeding at this time." In March 2013, the Veteran offered testimony before the undersigned. After discussing his in-service injury, the Veteran stated that he suffered from problems associated with his knee following service. He stated that, as a result of his in-service injury, he was denied post-service employment at a number of law enforcement agencies. The Veteran also indicated that the surgeon who performed his 2000 surgery indicated that his knee condition at that time was likely the result of his in-service injury. In October 2013, the Veteran underwent another VA examination. After conducting a complete examination and a complete review of the Veteran's claims file, the examiner opined that the Veteran's right knee disorder was less likely than not a result of the Veteran's military service. Instead, the examiner opined that his current right knee disorder with degenerative joint disease was likely cause by his work-related injuries in 1987 and 1998. The examiner noted that, despite his May 1975 injury, the Veteran reported that his knee was normal in January 1976, and there were no other complaints related to the Veteran's right knee from January 1976 until his discharge. As a result, the examiner found that the May 1975 injury was acute and transitory, and had resolved itself. The examiner also noted that there was nothing of record showing that the Veteran had undergone treatment from the time he was discharged until 1987 when he suffered a work-related injury while working for the United States Postal Service, or April 1998 when he was injured while working for United Airlines. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right knee disorder. In this regard, the Board places great probative weight on the October 2013 VA examiner's opinion that the Veteran's right knee disorder is not related to his military service, to include his in-service injury playing football. The Board finds that the October 2013 VA examination report clearly reflects consideration of the lay statements of record, including the Veteran's alleged in-service injury and the continuity of symptoms, and provides a complete rationale supported by the service treatment records and post-service medical history. Furthermore, the opinion offered a clear conclusion with supporting data as well as reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, the Board accords the greatest probative weight to the October 2013 VA examiner's opinion. Moreover, no probative medical evidence of record refutes the October 2013 VA examiner's opinion. In this regard, while the February 2012 VA treatment record suggested a etiological relationship between the Veteran's current right knee disorder and his military service, the Board finds that this opinion has no probative value. In this regard, although the Veteran indicated that he was counseled to have surgery in service, his service treatment note only a ligament strain and surgery was never mentioned as necessary or recommended in his service treatment records. The Board points out that, as a medical opinion can be no better than the facts alleged by a veteran, an opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). Furthermore, although the February 2012 VA treatment record indicates a relationship between the Veteran's service and his chondromalacia patella, the opinion fails acknowledge or reflect any consideration of the effect of the Veteran's post-service injuries to his knees in 1987, 1998, and 1999. Consequently, as the Veteran clearly failed to provide the surgeon with an accurate history regarding the injuries to his right knee, including his post-service injuries, the Board cannot attach any significant probative value to this opinion as it is clearly based on an inaccurate history. The Board has also considered whether service connection is warranted on a presumptive basis. However, the record fails to show that the Veteran's right knee disorder manifested to a degree of 10 percent within the one year following his discharge from active duty. Additionally, as will be further discussed herein, the Veteran has not provided a credible account of a continuity of symptomatology. As such, presumptive service connection for either the Veteran's right knee disorder, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. In this regard, the Veteran has stated on multiple occasions that he began to experience problems with his right knee during service and that those problems have continued since service. In weighing credibility, VA may consider interest bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desires for monetary gain, and demeanor of the witness. Caluza, supra. In this case, the Board finds that the Veteran's statements concerning the onset and continuity of symptoms associated with current right knee disorder lack credibility as they are inconsistent with other evidence of record. For example, when the Veteran was seen in July 1998 following his April 1998 work-related injury, when asked about his prior medical history, he only discussed the injury to his right knee in 1987, not his in-service injury. Also, in that same July 1998 record, the Veteran indicated that he had recovered from the 1987 injury, indicating that there was no symptomatology until April 1998 when he reinjured his right knee. It was not until after he filed his claim for service connection that the Veteran started to attribute his current right knee problems to his military service and complained of continuous symptoms since his discharge. In this regard, statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care." Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). Because the Veteran's current statements regarding continuity of symptomatology, which were made in connection with his pending claim for VA benefits, are inconsistent with statements made for the purpose of obtaining medical care, the Board finds that the Veteran's lay statements concerning continuity of symptomatology are not credible. Consequently, the Board assigns no probative weight to such statements. Furthermore, the Board acknowledges the Veteran's contention that his right knee disorder, including his post-service injuries, is related to his military service. Despite the Veteran's argument, he is not competent to opine on such complex medical questions. 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). The question of causation of a right knee disorder involves a medical subject of an internal physical process extending beyond the immediate observable cause-and-effect relationship. As such, the determination of the etiology of his right knee disorder requires a specialized understanding of the medical nature and pathology of this disorder, which the Veteran has not been shown to have. See Jandreau, supra; Woehlaert, supra. As such, the Veteran's opinion is afforded no probative value. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his current right knee disorder and his military service, including his in-service injury, as well as his opinion that the residuals from his in-service injury led to his post-service injuries. In contrast, the October 2013 VA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's service treatment records, post-service treatment records, and the Veteran's lay statements regarding the onset and continuity of symptoms. Therefore, the Board finds that the October 2013 VA examiner's opinion is the only probative evidence of record addressing the relationship between the Veteran's current right knee disorder and his military service. Therefore, based on the foregoing, the Board finds that service connection for a right knee disorder is not warranted. 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 (CONTINUED ON NEXT PAGE) service connection for 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; Gilbert, supra. ORDER Service connection for a right knee disorder is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs