Citation Nr: 1633718	
Decision Date: 08/25/16    Archive Date: 08/31/16

DOCKET NO.  14-19 405	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington



THE ISSUE

Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities.  



ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel



INTRODUCTION

The Veteran had active duty service in the U.S. Army from June 1991 to March 2012. 

This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

In December 2015, the Board remanded the Veteran's claim for further development. The claim has since returned to the Board for further consideration.

This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 
 

FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran has a current right knee disability that had an onset in service, or is otherwise related to active service or to a service-connected disability.  Arthritis has not been clinically established.


CONCLUSION OF LAW

A right knee disability was not incurred in or aggravated by the Veteran's active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In November 2011, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, notice of what part VA will attempt to obtain, and how disability ratings and effective dates are assigned.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations and obtaining relevant opinions that are adequate for adjudication purposes. The Board finds that there is no indication that additional records have yet to be requested, the examinations/opinions of record are adequate for adjudication purposes, and no additional examination is required.

Pursuant to the Board's December 2015 remand, the Agency of Original Jurisdiction provided the Veteran with a new examination and addendum opinion which was responsive to the questions asked of the examiner, and issued a supplemental statement of the case in March 2016. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's December 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998).

Finally, in reaching a determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting the decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to their claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Legal Principles

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may be established on a secondary basis for a disability that is 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. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).




Analysis

The Veteran contends that he has a current right knee disability, which developed as a result of his military duties, including parachute jumps, air assault operations, road marches, and foot patrols with full combat loads. The Veteran also contends that injuries to his feet forced his knees and other body parts to compensate for their weaknesses. The Board notes that the Veteran's service-connected left knee strain  is currently evaluated as 10 percent disabling, and he claims that this disability is a bilateral condition.  He is also service connected, in pertinent part, for bilateral pes planus rated 30 percent disabling, and arthritic changes of both ankles, individually rated 10 percent disabling.

The Board observes that the Veteran's service treatment records are silent for any chronic and disabling right knee condition. The Veteran has received both VA and private treatment for bilateral knee joint pain, which he contends began around 1994. However, no chronic right knee disorder has been diagnosed. 

The Veteran was initially afforded a VA examination in March 2012. Diagnostic testing of the Veteran's knees revealed normal medial and lateral compartments, with no fractures, dislocations, joint effusions, or radiopaque loose bodies. The soft tissues were unremarkable. Ultimately, the examiner diagnosed the Veteran with a left knee strain and remarked that the Veteran's right knee is normal per the clinical examination. 

Pursuant to the Board's remand, the Veteran was afforded another examination in January 2016. The examiner noted that the Veteran complained of knee pain that began around 1994 during training. After a thorough review of the Veteran's claims file, the examiner determined that the Veteran does not have a current right knee disability. The examiner reported that range of motion testing for the Veteran's right knee was abnormal or outside of the normal range, but opined that the range of motion is actually normal for the Veteran, given the symmetrical findings and Veteran's poor effort during testing. Diagnostic testing yielded small bilateral knee effusion, which was otherwise normal and unchanged from the March 2012 results. The examiner remarked that

Although the Veteran's range of motion on today's examination is minimally diminished in flexion it is my opinion that this is the Veteran's normal range of motion as both knees were symmetric without objective focal abnormality at either knee. Further, Veteran was noted to display poor effort in range of motion testing. There is no radiographic evidence of arthritis. The Veteran endorsed that his right knee symptomatology is similar but to a lesser degree than his left knee symptoms which was diagnosed as a left knee strain in 2012.

The examiner further explained that 

Gait and weight bearing are normal on exam 1/27/2016. Range of motion measurements resulted in the March 2012 C&P knee report confirm normal ROM at the right knee. After consultation 1/27/2016 with the March 2012 C&P examiner, the examiner confirms that "Left" not "both" is the appropriate response to item 6b. There was no objective evidence of a right knee condition at the time of the March 2012 C&P exam. Normal bilateral knees per imaging data 3/26/12. The minimal effusion noted on both knee per imaging 12/2015 is not clinically significant and does not alone represent a diagnosis. This radiographic finding is considered incidental. Although the Veteran has subjectively complained of right knee symptoms available records for review are objectively silent for a chronic and disabling right knee condition that can be related to service or a service related condition. As to the remand inquiry "of whether there was ever a right knee disorder present at any time during the appeal period" available records for review are objectively silent for a diagnosed right knee condition.

Ultimately, the examiner determined that "there is no objective evidence of a current right knee condition and as such no diagnosis is rendered in this report." 

As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). 

The Veteran is competent to report his symptoms of right knee pain. However, an underlying disability related to the right knee has never been identified during the current appeal period. Pain, without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet App 282 (1999). There is no other competent medical evidence of record, VA or private, of an underlying right knee disability in the record.

In essence, the evidence of a current diagnosis of a right knee disability is limited to statements from the Veteran and general complaints of knee pain. The Board finds that diagnosing a disability related to the knee requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a knee diagnosis. 38 C.F.R. § 3.159(a)(1), (2) (2015).

In light of the absence of any competent evidence of a current chronic right knee disability, the claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 


ORDER

Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is denied.

____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs