Citation Nr: 1646458 Decision Date: 12/12/16 Archive Date: 12/21/16 DOCKET NO. 11-10 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1966 to February 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded the claims in July 2014. The issue of service connection for the low back is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. A preponderance of the evidence fails to establish that the Veteran has or had a chronic disability of the right knee at any time during the appeal period. 2. A preponderance of the evidence fails to establish that the Veteran has or had a chronic disability of the left knee at any time during the appeal period. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). 2. A left knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all 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 Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2015). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. An October 2009 letter provided all required notice elements, including what evidence VA would seek to obtain and what evidence the Veteran was expected to provide, what was required to establish service connection, and information regarding disability ratings and effective dates. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA's duty to assist has also been satisfied. Service treatment records and the VA examination report are in the file. Private treatment records have been obtained to the extent possible. The Veteran has at no time referenced other available and relevant records that he wanted VA to obtain or that he felt were relevant to his claims. The Veteran underwent a VA examination for his claimed bilateral knee disability in September 2014. The examination involved a thorough examination of the Veteran, consideration of his lay statements/history, and a conclusion that was supported by sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). These claims were remanded to the AOJ in July 2014 to ask the Veteran to identify any outstanding treatment records to schedule him for a VA examination. The Veteran was asked to identify any outstanding treatment records in an August 2014 letter and was examined in September 2014. Accordingly, all remand instructions issued by the Board have been substantially complied with and these matters are once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims Under the relevant laws and regulations, 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 (West 2014). 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 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). A review of the medical evidence of record fails to establish a diagnosed disability of the right or left knee at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran has not identified a disability either. Rather, he only generally complains knee pain. He does not assert that he has been specifically diagnosed with any knee disability or underlying pathology. The only evidence of a knee problem consists of the Veteran's subjective complaints of pain, particularly if he sits a long time. Significantly, the Veteran was specifically examined for his bilateral knees in September 2014. The VA examiner concluded that he had a normal physical examination and x-rays and could not provide a diagnosis. The Veteran himself even denied instability, locking, or swelling. This is consistent with the numerous VA treatment records that are negative for a diagnosed knee disorder. There is simply no medical evidence showing objective findings of a right or left knee disorder or any underlying pathology, nor does the Veteran contend that he has been diagnosed with such. Consideration has been given to the Veteran's contentions that he has a current bilateral knee disorder. However, the Board finds that his opinion is not competent evidence in this regard because he has not demonstrated the medical expertise needed to render an opinion on the nature of his bilateral knee pain. Further, 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. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine in the context of a negative physical examination. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report that he experiences - knee pain - he is not competent to attribute those complaints to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (2015) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). His assertions are therefore not competent evidence of a diagnosis of a right or left knee disorder. The Veteran's opinion would also be significantly outweighed by the negative opinion from the September 2014 VA examiner and lack of diagnoses from VA physicians, who clearly hold the level of medical expertise to address the nature and etiology of the Veteran's complaints. Accordingly, the first element of Shedden/Caluza is not met and service connection cannot be granted for a right or left knee disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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 Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. REMAND The Veteran's low back claim was remanded for a VA examination that specifically addressed his inservice parachute jumps and complaints of continuous low back pain since service. Although he was afforded a VA examination in September 2014, the examiner did not address these contentions. As such, the VA examination does not comply fully with the Board's remand and is inadequate to decide the claim. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). This claim must be remanded for an addendum opinion. Accordingly, the case is REMANDED for the following actions: 1. The Veteran's claims file should be provided to an another appropriate examiner for an addendum opinion. The claims folder must be reviewed by the examiner and the examination report must reflect that such a review was conducted. The examiner should opine whether it is at least as likely as not (50 percent or greater) that the Veteran's currently diagnosed low back disability, to include arthritis, began in or is related to service. The examiner must consider the Veteran's complaints of continuous symptoms since service, as well as his history of parachute jumps. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, s/he shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After completing the above action, the Veteran's claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs