Citation Nr: 1614458 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 10-41 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and brother ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to December 1988, and form June 1989 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of January 2010. In April 2015, the Veteran appeared at a Board hearing held at the RO before the undersigned (i.e., Travel Board hearing). The Board remanded the issue in September 2015. FINDING OF FACT A chronic disability of left and/or right knee was not shown in service or until several years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed degenerative joint disease of the knees was caused by his active service or by his service-connected bilateral foot disabilities, nor did the bilateral foot disabilities cause a permanent increase in the severity of the knee disabilities. CONCLUSION OF LAW The criteria for service connection for bilateral knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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) (West 2014); 38 C.F.R. § 3.159(b) (2015). In a letter dated in December 2009, prior to the adjudication of the claim, the RO notified the Veteran of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was also provided with information regarding assigned ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice requirements have been met and neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). When conducting a hearing, a VLJ must (1) fully explain the issues and (2) the suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2015). Here, at the Veteran's Board hearing, the issue on appeal was clearly discussed, and the undersigned VLJ sought to identify any pertinent evidence not currently associated with the claims folder. The issue was subsequently remanded by the Board to obtain and develop such additional evidence. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Service treatment records have been obtained. VA treatment records and all other post-service treatment records adequately identified by the Veteran were obtained. Records were obtained from Social Security Administration (SSA). See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA must request potentially relevant SSA records). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. The Veteran underwent VA examinations in December 2009 and November 2015. Collectively, the reports contain sufficient information to address the medical questions at issue in this decision, and are considered adequate for decisional purposes, when considered together and with the other evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2015 VA examination also complied with the remand directive. Treatment records were received pursuant to the remand order as well. Thus, there has been substantial compliance with the remand development orders. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Evidence was received after the issuance of most recent supplemental statement of the case in January 2016, but the evidence consisted of duplicates of medical records previously on file, and the Veteran's contentions, which reiterated his prior contentions. Therefore, a supplemental statement of the case is not needed. Hence, all necessary notification and development has been accomplished, and no further notice or assistance is required to fulfill VA's obligations concerning the development of the claims decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection for certain chronic diseases, such as organic diseases of the nervous system, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). The Veteran seeks service connection for a bilateral knee disability, which he claims was caused or aggravated by his service-connected bilateral foot disability. No knee complaints or abnormal findings are noted in the service treatment records. Review of the extensive medical records compiled over the years since service reveals that the Veteran has had differing diagnoses for his complaints of knee pain. The earliest records, from Marshfield Clinic, dated in July 1994, showed a right foot pain, which he said impeded his ability to stand or ambulate because he favored his left leg. He had a lot of pain in that foot, ankle, and knee as well. On examination, he walked with a right antalgic limp. The Veteran complained of right knee pain for three weeks without injury in October 1994. At that time, he complained of fluid or swelling on the knee, which he said he had had in the past. Flexion was limited to 90 degrees, and there was laxity in the knee; the assessment was internal derangement of the right knee. In January 2000, a history of intermittent effusion of both knees for about 5 years was noted The Veteran indicated that he did not have proper orthotics for his bilateral foot condition. On examination, he had mild joint effusion of both knees, without deformity, instability, or pain with forced extension. The assessment was joint effusion in the knees, bilaterally, probably secondary to abnormal gait caused by foot disability. However, in December 2001, he was noted to have bilateral knee pain, with X-rays essentially normal, and it was reported that there was no definite pathologic etiology for knee pain. In April 2002, laboratory tests, including a rheumatoid factor elevated at 1:160, and a sedimentation rate of 20 resulted in an assessment of rheumatoid factor seropositivity. The Veteran was evaluated at the Mayo Clinic in September 2003. He stated that he had been diagnosed with rheumatoid arthritis in May 2002, based on multiple joint swelling and positive rheumatoid factor. The assessment was history of rheumatoid arthritis, which appeared to be in remission in spite of pain. It was commented that the pain was poorly explained by the diagnosis of rheumatoid arthritis as he did not currently have active synovitis. The diagnosis was rheumatoid arthritis, but it was noted that there was some question about the certainty of the diagnosis of rheumatoid arthritis. The Mayo Clinic records show that the Veteran also reported serving in the Gulf War, and some mention of the possibility of Gulf War syndrome was noted. The Veteran had evidence of arthralgias and chronic pain but no definite laboratory or clinical evidence of rheumatoid arthritis. X-rays of hands show evidence of light soft tissue swelling, but no other arthritic changes. In May 2005, the diagnosis was rheumatoid arthritis, by history, mild, although this same physician wrote in a letter dated the same time, that the Veteran's final diagnosis was rheumatoid arthritis and chronic pain syndrome. In November 2005, the diagnosis was seronegative inflammatory arthritis, etiology unclear. VA treatment records include a whole body bone scan in September 2008, which revealed findings consistent with mild degenerative disease in the left knee and right mid-foot. X-rays in December 2009 disclosed mild bilateral knee osteoarthrosis. A VA examination in December 2009 resulted in the conclusion that it was less likely as not that the Veteran's bilateral knee osteoarthritis was caused or permanently aggravated by the service connected bilateral foot/scar conditions. The examiner explained that the Veteran did not have significant gait abnormality with evidence of alteration of the mechanics of weight bearing such as to have an effect on the function of the knee joints. The examiner concluded that the bilateral knee arthritis was due to his generalized inflammatory arthritis. A VA orthopedic consultation in June 2013 reported that the Veteran was discharged from service due to problems with his feet, and had gone on to develop some symptomatic discomfort in the knees with recurrent swelling. On examination, there was effusion in both knees, without instability or significant tenderness. X-rays show degenerative narrowing of the medial compartment bilaterally. He has also had an MRI examination of the right knee which shows intact cartilage and ligaments. The impression was symptomatic bilateral osteoarthrosis of the knees, which "could well have been exacerbated by his chronic foot problems" changing his overall gait pattern and adding to the wear in his knees. However, in a March 2015 VA opinion concerning whether a hip condition was due to the foot disability, the examiner noted that "the veteran's gait is not impaired." In April 2015, the Veteran submitted a private DBQ examination. The diagnosis was mild bilateral knee joint osteoarthritis. The examiner stated that it was at least as likely as not that the Veteran's service-connected bilateral foot condition was aggravating his knee pain. No rationale was offered. Additionally, service connection cannot be granted based on pain, alone, without disability or functional impairment. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Therefore, this opinion is inadequate. At his hearing, the Veteran showed the undersigned VLJ a pair of shoes, which he stated demonstrated an abnormal wear pattern. He related his history of knee pain, and reiterated his belief that that knee pain resulted from his foot disabilities. In December 2015, a VA examination was performed. The Veteran stated that he started having bilateral knee pain in the early to mid-1990's. He states that he started having bilateral knee edema in the early 1990's. Medical records showed normal bilateral knee X-rays in December 2001. He was diagnosed with rheumatoid arthritis in May 2002 at the Mayo Clinic, but he stated that this was false and he never really had it. In September 2009, he was in a motorcycle accident causing a right ankle sprain, which the Veteran stated took two years to heal. In December 2009, X-rays showed mild midlateral knee osteoarthritis. The examiner noted that degenerative joint disease had been documented by X-rays. There was no evidence of bilateral knee pain with walking. The Veteran had a slightly antalgic gait, but the examiner stated that this was most likely due to his right ankle hard Arizona brace which did not allow for proper right ankle movement. The Veteran had been diagnosed with bilateral knee inflammatory arthritis around 2002 and started on anti-inflammatory medication. In 2009, his bilateral knee X-rays finally started demonstrating mild degenerative joint disease of both knees. His gait was documented as normal on the March 2015 VA examination. On the current examination, the gait was mildly abnormal, but this was due to his right ankle brace. With multiple notes in the past not documenting any significant abnormality of gait as due to Veteran's bilateral foot condition, the examiner opined that it was less likely than not that the Veteran's current bilateral knee disability was caused or permanently aggravated by his service-connected bilateral foot disabilities. The examiner explained that the gait abnormalities needed to be present for several years, on average, before leading to significant other joint problems. In response to this report, the Veteran submitted copies of several medical records previously on file that showed an antalgic gait. However, the examiner's conclusion was based on the multiple notes that did not show a gait abnormality associated with his bilateral foot condition. Mayo clinic records show that he was evaluated for chronic pain in multiple joints. Although a mildly antalgic gait was noted in September 2003, this was after he already had chronic knee pain, and, moreover, there was no indication at that time that the slightly antalgic gait was due to his foot condition. In November 2005, he was noted to walk with a cautious but not focally antalgic gait. The record as a whole is consistent with the examiner's assessment that the records did not show, over time, a gait abnormality associated with his bilateral foot condition, and that there were numerous occasions on which an antalgic gait was not shown. While the examiner did not specifically address each instance where an antalgic gait was not shown, or where, if shown, it was not associated with a foot condition, the summary was adequate. The Court has held that "[t]here is no reasons or bases requirement imposed on examiners." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). "[E]xamination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion.") Monzingo v Shinseki, 26 Vet. App. 97, 106 (2012). Rather, it is the Board that must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Here, the Board finds that the examiner's conclusion is consistent with the evidence as a whole. Although the Veteran has been found to have an antalgic gait on many occasions, it has generally been noted to be mild. Further, when the Veteran has been found to have an antalgic gait, it has not consistently been attributed to his foot condition. His knee condition is bilateral, i.e., essentially the same on both sides. Although a private physician noted that the foot condition could aggravate his knee pain, for service connection by aggravation of a non-service-connected disability, there must be an actual worsening/increase in the underlying disability. Although the Veteran believes that it is his foot disability that has caused his knee disability, and has reported his history of symptoms, the ultimate conclusion, i.e., whether there was an alteration of the mechanics of weight bearing such as to have an effect on the function of the knee joints, is a medical determination. The medical evidence of etiology outweighs the Veteran's lay statements. The Board also observes that it is neither shown nor contended that a knee disability was present in service, and arthritis was not shown until several years after service. Although the Mayo Clinic records note that at one point, the question of whether he had Gulf War syndrome was raised, this was based on his having stated that he served in the Gulf War. Service department records do not reflect that the Veteran served in the Southwest Theatre of Operations at any time while on active duty. Moreover, as degenerative joint disease has been diagnosed, service connection for an undiagnosed under the tenets of 38 C.F.R. § 3.317 is not warranted. Based on the foregoing, the Board finds that the evidence establishes that a bilateral knee disability was not incurred in service, nor was such caused or aggravated by a service-connected bilateral foot disability. The Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral knee disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs