Citation Nr: 1616685 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 11-07 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder, to include as secondary to left knee disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1980 and from November 1981 to November 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The RO in Roanoke, Virginia, currently has jurisdiction over the Veteran's claims. The Veteran was afforded a Central Office hearing before the undersigned Veterans Law Judge (VLJ) in February 2016; a transcript of the hearing has been associated with the record. The Board notes that following the June 2015 supplemental statement of the case, the Veteran submitted additional evidence, along with a waiver of agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2015). The Board observes that the Veteran perfected an appeal as to the issue of entitlement to service connection for a low back strain. However, service connection was granted by a May 2015 rating decision, effective September 20, 2007. As such, this resolves the Veteran's appeal regarding this service connection claim. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Finally, the Board notes that, in September 2015, the Veteran notified the AOJ that he disagreed with the May 29, 2015, effective date assigned in a June 2015 rating decision that granted service connection for bilateral lower radiculopathy and assigned separate 10 percent ratings. Furthermore, during his February 2016 hearing, the Veteran again expressed dissatisfaction with the assigned effective date. However, in a June 2015 letter, the AOJ informed the Veteran that, in order to initiate an appeal of the June 2015 rating decision, the Veteran must complete and return the enclosed VA Form 21-0958, Notice of Disagreement. Furthermore, in September 2015, the AOJ once again informed the Veteran that, to initiate an appeal, he must submit a completed VA Form 21-0958. Because no expression of disagreement in any other form constitutes a valid notice of disagreement, 38 C.F.R. § 20.201 (2015), the Veteran's September 2015 and February 2016 expressions of dissatisfaction with the assigned effective date do not constitute valid notices of disagreement with the June 2015 rating decision. The Board reminds the Veteran that he still has until June 2016, to submit a completed VA Form 21-0958 in order to initiate an appeal of the June 2015 rating decision. FINDINGS OF FACT 1. During his February 2016 Central Office hearing, the Veteran withdrew his claim for service connection for bilateral hearing loss. 2. The competent medical opinions of record are in relative equipoise as to whether the Veteran's left knee disorder, which was noted on entry, was permanently aggravated his active duty service. 3. The probative evidence of record does not show that the Veteran incurred a right knee disorder during military service or within one year thereafter, and there is no competent, probative evidence indicating that such was caused by or aggravated by the Veteran's left knee disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of his appeal for service connection for bilateral hearing loss are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a left knee disability are met. 38 U.S.C.A. §§ 1111, 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303. 3.306 (2015). 3. The criteria for service connection for a right knee disorder are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). A substantive appeal may be withdrawn in writing or on the record during a hearing, and at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204 (2015). The withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his February 2016 Central Office hearing, the Veteran withdrew his appeal with respect to the issue of entitlement to service connection for bilateral hearing loss. Hence, there remains no allegation of error of fact or law for appellate consideration with respect to that issue. Accordingly, the Board does not have jurisdiction to review that issue, and it is dismissed. II. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2015); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2015); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). With regard to the Veteran's claim for service connection for a left knee disorder, the Board is granting the full benefit sought. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. With respect to the Veteran's claim for service connection for a right knee disorder, prior to initial adjudication of the Veteran's claim, a letter dated in November 2007, fully satisfied the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording a VA examination. 38 U.S.C.A. § 5103A. The Veteran's service treatment records and a number of private medical opinions have been obtained and associated with the claims file. The Board acknowledges that the Veteran has not been afforded a VA examination to address the etiology of his right knee disorder. However, the Board finds that an examination is not necessary because there is no competent, probative evidence indicating that the Veteran's right knee disorder is related to his military service or his left knee disorder. Instead, the record contains only conclusory, generalized lay statements from the Veteran that relate his current right knee disorder to his left knee disorder. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran was afforded a hearing before the undersigned VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the February 2016 hearing, the VLJ noted the issues on appeal and sought to identify any pertinent evidence not currently associated with the claims folder that may have been overlooked or was outstanding that was pertinent to his claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor he has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate his claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Veteran has not identified any additional pertinent evidence that needs to be obtained in order to fairly adjudicate the issues before the Board, and he has not argued any error or deficiency in the accomplishment of the duty to assist that has prejudiced him in the adjudication of his appeal. As there is no indication that additional development is necessary to assist in the adjudication of his claims, the Board finds that the duty to assist has been fulfilled. III. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making its determination, the Board is obligated to weigh the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); see also Jandreau, 492 F.3d 1376-77. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287-88(2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)). A. Left Knee The Veteran is seeking service connection for a left knee disorder as a result of his military service. Specifically, during his February 2016 hearing before the undersigned, the Veteran acknowledged that, although he suffered a knee injury prior to military service, the physical activity during service aggravated his condition beyond its normal progression. See February 2016 Hearing Transcript, pp. 3-4. In the October 2008 rating decision on appeal the RO referenced the July 2008 VA examiners opinion that the Veteran's left knee disorder preexisted his military service and that there was no evidence that that condition was aggravated by his military service. Given this evidence, the issue of whether the Veteran was sound upon entrance into active duty, or whether the Veteran suffered from a preexisting disability has been raised. Under pertinent law and regulations, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (outlining the presumption of soundness). In determining whether a specific condition is "noted" on entry, the Board's analysis is limited to whether the condition was record in the entrance examination report. Here, the Board finds that such a left knee disorder was "noted" for the purposes of the presumption of soundness. In this regard, in a September 1976 Report of Medical History, the Veteran reported a history of a trick or locked knee. The Veteran's September 1976 entrance examination noted his prior history of left knee problems, including an arthrotomy and the removal of loose bodies in the left knee. (Likewise, on his October 1981 entrance examination for his second tour of duty, the examiner noted the surgical scar on his left knee and his pre-service arthrotomy.) The Board thus finds that a preexisting left knee disorder was "noted" upon the Veteran's entrance into service in September 1976 and October 1981. Accordingly, the question in this case is whether the Veteran's knee disability was aggravated by service. 38 U.S.C.A. § 1153 and its implementing regulation direct that service connection will be established for a preexisting disability that worsened beyond its natural progression during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Such aggravation will be rebuttably presumed where there is affirmative evidence of in-service worsening. Conversely, aggravation will not be conceded where the preexisting disability underwent no discernable increase in severity in service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Mere "temporary or intermittent flare-ups" of a worsening preexisting condition are generally insufficient to show that in-service worsening has occurred. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). However, the degree of in-service worsening need not be so great as to warrant compensation in order for the presumption of aggravation to attach. Browder s. Derwinski, 1 Vet. App. 204, 207 (1991). Notably, once the presumption of aggravation does attach, the government bears the burden of showing, by clear and unmistakable evidence "that the increase in disability is due to the nature progression of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F.3d at 1096. In this case, during the Veteran's September 1976 entrance examination, the Veteran displayed full range of motion, there was no effusion, his meniscus test was negative, there was no evidence of instability, and no evidence of chondromalacia. Furthermore, the examiner noted that X-rays revealed "no abnormalities" in his left knee. On his October 1981 entrance examination for his second tour of duty, no other disability or defect was noted. The Veteran's service treatment records reveal a number of complaints related to his left knee. For example, in March 1982, the Veteran complained of left knee pain, as well as, left ankle pain, after dropping a motorcycle on his ankle. X-rays were negative. In May 1983, the Veteran complained of left knee pain after injuring his knee during a baseball game. The Veteran reported that his pain was worse after walking long distances. He was diagnosed with patellofemoral syndrome and chondromalacia, and he was restricted to limited duty for twenty days. With the diagnoses of patellofemoral syndrome and chondromalacia first appearing in service, and requiring a period of restricted duty, it is reasonable to conclude this represents an increase in disability during such service. It thus becomes necessary to point to clear and unmistakable evidence that this increase was due to the natural progression of the disability in order to deny service connection. The Veteran underwent a VA examination in July 2008 to address the nature and etiology of his left knee. During the examination, the Veteran reported that his current problems with his knee began in 1987. He said that, while on active duty, he was running nearly thirty miles a week, and that he continued to run post-service. He stated that, beginning in 1987, he was unable to run because of the discomfort in his left knee. The examiner noted the Veteran's left knee arthrotomy in 1975, as well as a September 1976 letter from his private orthopedic surgeon. The Veteran was diagnosed with degenerative joint disease of the left knee. The examiner opined that the Veteran's left knee disorder was less likely than not related to his military service. The examiner reasoned that the Veteran's pre-service injury and surgery indicated degenerative joint disease prior to his active duty service. The examiner noted that the Veteran had minimal symptoms despite minor injuries in service. Overall, the examiner found that the Veteran's degenerative joint disease existed before service and after service with aggravation from his continued running after service. In support of his claim, the Veteran submitted an August 2009 letter from Dr. Stephen Howell, an orthopedic surgeon. Dr. Howell stated that it was clear that the Veteran had a substantial injury pre-service when he was hit by a car and underwent an arthrotomy. Dr. Howell noted that that the Veteran was admitted into the military because a diagnosis of an ACL tear was not very clear, that he was able to perform his duties as a drill instructor. Dr. Howell also noted that, although the Veteran had some shifting events in service, he was not limited in the performance of his military duties. Dr. Howell also noted a post-service tennis injury to his left knee in 1995. Overall, Dr. Howell diagnosed the Veteran with reasonable probability of chronic ACL insufficiency since childhood, and degenerative arthritis of the medial hemijoint, due to chronic wear and tear with previous meniscectomy, bone-patellar tendon-bone reconstruction, and probable aggravation by service-connected activities. In October 2009, the Veteran submitted a letter from Dr. Daniel Sewell. In the letter, Dr. Sewell stated that, despite the Veteran's pre-service injury, it was his opinion that the Veteran's left knee pain was as likely as not significantly and permanently aggravated by his military service. Dr. Sewell noted that the Veteran had a significant amount of running during service. Dr. Sewell also stated that the left knee was aggravated, and that the Veteran had extensive evaluations and was found to have loose bodies, but no internal derangement of the left knee. Dr. Sewell noted the Veteran's post-service injury in 1995 and the fact that he was found to have ACL and meniscus tears, and stated that the ACL was not an acute tear. He opined that the Veteran's left knee disorder was incurred during his military service. In August 2015, the Veteran submitted another private opinion from another orthopedic surgeon, Dr. Kathleen McHale. She noted the Veteran's pre-service injury, as well as his pre-service surgery when bone chips were removed from his left knee. Dr. McHale noted that, during his active military service, he was engaged in a lot of running activities as the leader of brigade runs. She also noted the Veteran's post-service injury and surgery for an ACL reconstruction and meniscectomy. Overall, Dr. McHale opined that the Veteran's left knee was secondary to his pre-service trauma, and was more likely than not aggravated by his military service. After a careful review of the evidence, the Board finds that the evidence of record does not clearly and unmistakably show the increase in service was due to the natural progression of the Veteran's left knee injury. Notably, the July 2008 VA examiner did not make a specific finding on the question, and most of the others concluded the knee was aggravated by service. On this record, the evidence is not clear and unmistakable the increase in service was due to the natural progression of the disability. Accordingly, the Board concludes that the Veteran's preexisting left knee disorder was aggravated beyond its natural progression by his military service, and his claim for service connection, therefore, is granted. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. B. Right Knee The Veteran claims entitlement to service connection for a right knee disorder, to include as secondary to his now service-connected left knee disorder. Specifically, he claims that his right knee disorder developed as a result of favoring his now service-connected left knee disability. See October 2009 Notice of Disagreement. The Board finds that the preponderance of the evidence is against the Veteran's claim. Initially, the record shows a current right knee disorder. Specifically, a June 2015 letter from Dr. Kathleen McHale noted mild joint space loss in the right knee. The Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses pertaining to the Veteran's right knee. During his February 2016 hearing, the Veteran testified that he believed that his right knee was affected by his left knee because he overcompensated due to the loss of stability in his left knee. As reflected above, there is no evidence that a right knee disorder manifested in service. Additionally, there is nothing in the record to suggest that such a disorder manifested to a compensable degree within one year from the Veteran's separation from active duty. The Veteran has submitted no competent medical evidence to support his claim. Instead, the only evidence relating his current right knee disorder to his left knee are his own conclusory, generalized lay statements. While the Veteran is competent to report his right knee symptoms, such as pain, as for any direct assertion by the Veteran that there exists a medical relationship between his right knee disorder and his service-connected left knee, the Board finds that such assertions are not persuasive evidence in support of the claim. The question of the medical etiology of the Veteran's right knee disorder is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific question of the etiology of the Veteran's right knee disorder is complex in nature and falls outside the realm of the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As the Veteran is not shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative opinion on the issue at hand. Id. Here, the probative evidence simply shows the onset of a right knee disability years after service. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for bilateral hearing loss is dismissed. Service connection for a left knee disorder is granted. Service connection for a right knee disorder is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs