Citation Nr: 1647114 Decision Date: 12/16/16 Archive Date: 12/30/16 DOCKET NO. 08-13 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected left sided weakness. 2. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left sided weakness. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nichols, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to March 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. RO jurisdiction over this case was subsequently transferred to the VARO in Columbia, South Carolina. In October 2014, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. In April 2015, these issues were remanded by the Board for further evidentiary development. FINDINGS OF FACT 1. A left knee disability 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 the Veteran's discharge from service. 2. A left knee disability is not caused or aggravated by a service-connected disease or injury. 3. A right knee disability 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 the Veteran's discharge from service. 4. A right knee disability is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by service, and it is not presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 2. A left knee disability is not proximately due to, the result of, or aggravated by a service connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.310 (2015). 3. A right knee disability was not incurred in or aggravated by service, and it is not presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 4. A right knee disability is not proximately due to, the result of, or aggravated by a service connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). A. Duty to Notify 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). Here, the RO provided a notice letter to the Veteran in December 2006. The claims were last adjudicated by way of a July 2015 Supplemental Statement of the Case. B. Duty to Assist VA also must make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). 1. Duty to Obtain Records VA has met the duty to assist the Veteran in the development of the claims being decided herein because VA has obtained all the post service medical records identified by the Veteran as relevant. In this regard, her service treatment records have been obtained to the extent possible. As explained by the Veteran on the VA Form 9, the rating decision of July 12, 2007, was based on partial original service treatment records. In February 2008, approximately 100 pages of original service treatment records ranging from 1991 to 1999 were found in another veteran's file at the Columbia RO. These records were forwarded and received by the St. Petersburg RO in February 2008. The Veteran or her representative does not further contend that there are missing volumes from her service treatment records. Post service treatment records have also been associated with the claims file. Neither the Veteran nor her representative avers that there are any outstanding records that need to be sought prior to the adjudication of the claims. 2. Duty to Provide Examination/Opinion The Veteran has undergone a VA examination in June 2015. The Board finds that this examination is adequate to decide the appeal. The examiner reviewed the claims file, including the service treatment records, examined the Veteran and reported relevant clinical findings, and provided medical findings and an opinion directly pertinent to the instant matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2). Because the evidence of record is otherwise adequate to fully resolve the matter in the Veteran's favor, as will be discussed below, no further VA examination or opinion is necessary. 38 C.F.R. § 3.159(c)(4). 3. Bryant As noted above, VA provided the Veteran with a hearing before the Board. During the October 2014 hearing, the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. C. Stegall Compliance The Board also finds that there was substantial compliance with the April 2015 Board remand directives. Specifically, as relevant, attempted records development took place and a VA examination and opinion was undertaken and prepared in June 2015 to specifically address the questions posed by the Board. This VA examination, as indicated, is adequate to resolve the appeal. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. II. Analysis A. Veteran's Contentions The Veteran claims entitlement to service connection for her left and right knee disabilities under two theories of entitlement - direct and secondary service connection. To this end, first, she maintains that she has osteoarthritis of the knees caused by injuries and trauma that incurred during military service. She claims to have suffered from years of bilateral knee pain, caused by trauma sustained while climbing up and down ladders on ships and from physical training exercises in the Navy. See July 2006 Statement. Next, in November 2006, she claimed service connection for a bilateral knee condition, secondary to her service-connected left sided weakness. At this time, she indicated that there is a copy of X-ray studies of her right knee on file at Dorn and that her left knee has recently been giving way without cause; the twisting was causing swelling and pain. On her September 2007 Form 9, the Veteran indicated that her left leg giving way has "taken its toll on [her] knees." The Board notes that the Veteran is currently service connected for left-sided weakness and nerve and muscle changes due to an undiagnosed illness; she has been at a 40 percent disability rating for this disability since 2005. B. Applicable Law Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). 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). This includes weighing 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. A lay person is competent to report on the onset and continuity of his symptomatology. Kahana, 24 Vet. App. at 438. Moreover, 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. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 Kahana, 24 Vet. App. at 433 n.4. 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 (Fed. Cir. 2009); see also Walker, 708 F.3d at 1334. 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. § 5107(b)). C. Discussion In light of the applicable law set forth above, the Board has carefully considered the facts of this case. Ultimately, both claims of service connection must be denied because the preponderance of the credible and competent evidence of record weighs unfavorably against the claims. The reasons and bases resulting in this determination are as follows. (1) Present Disability During the period of the appeal, the Veteran has received a diagnosis of mild degenerative joint disease (DJD) in both of her knees. See 2007 VA Examination Report. Years later, she received a diagnosis of osteoarthritis in both knees. See 2015 VA Examination Report. Thus, the requirement for a current disability has been satisfied. (2) In-Service Incurrence Next, the evidence of record makes it is as likely as not that the Veteran experienced knee pain during service. The Veteran specifically avers that her current left knee disability is the result of a 1982 motor vehicle accident (MVA) in service; she has had left knee problems since that time. Additionally, she claims that physical training exercises in service began the deterioration in both of her knees. The Veteran references events in service, not all of which are documented. For instance, there are service treatment records covering the time period of the MVA, which the Veteran has stated was in 1982. However, the MVA documented in the record occurred in April 1985, where the Veteran was rear-ended in a traffic jam and she complained of pain in the neck, back, and hips. There were no complaints of the knees. In any event, for this element, the Board will accept the Veteran's various statements and testimony that she experienced bilateral knee pain in service due to various physical activities. However, the determinative issue is whether the evidence satisfies the "nexus" element - the next step of the analysis. (3) Nexus Although the Veteran is currently diagnosed with a bilateral knee disability and experienced knee pain during service, the claims must be denied because a nexus between the current diagnosis and the in-service injury is not established. (i) Chronicity/Continuity As a threshold matter, osteoarthritis is considered to be a chronic disease under § 3.309(a). However, this condition was not established during service as chronic, and the fact of chronicity during service is not otherwise supported. 38 C.F.R. § 3.303 (b). The most probative evidence makes it most likely that the Veteran's knee pain in service was acute and resolved by separation. A summary of relevant complaints from service entry to separation are as follows. The January 1980 enlistment examination shows normal findings for the Veteran's knee joints. The corresponding self-report of medical health shows no complaints of painful joints or knee issues. The service treatment records show a September 1982 emergency care entry, revealing that the Veteran hurt her right index finger on her car door; there was a laceration, and no mention of a MVA on this report. On an April 1984 re-enlistment examination report, there are normal findings of the knee joints without any defects. An examination in May 1989 for the purposes of service extension shows normal lower extremities and zero defects. On the corresponding self-report of medical health, the Veteran checked yes for "[s]wollen or painful joints" and checked no for "'Trick' or locked knee." The 1990 re-enlistment examination report also shows normal findings for the knee joints. On the corresponding self-report of medical history, she again indicates that she has "[s]wollen or painful joints" and explained that in cold weather, her joints are sore. She specifically denied "'Trick' or locked knee" in that report. The Veteran claimed the same on her self-report of medical health in March 1992 (reported joint pain but denied trick or locked knee). In September 1995, an examination revealed normal findings with the corresponding self-report suggesting, again, swollen or painful joints in the winter. On her November 1998 self-report of medical history, the Veteran reported swollen and painful joints. In the physician's summary box, "left knee pain since 1982" and "used to have arthrocentesis (MVA 1982)" was written in that field. The Veteran's November 1998 separation physical examination reflects that clinical evaluation of the lower extremities was normal. No defects or diagnoses were listed at this time, and the Veteran was cleared for retirement from active duty. At her Board hearing, the Veteran testified that she had a left knee strain while going through her discharge examination and that it was noted on her separation examination report. The Board notes that left knee complaints were noted on her self-report of medical history, however, the separation examination revealed a normal clinical evaluation of the lower extremities. Shortly after separation from service in March 1999, the Veteran underwent VA X-ray studies of her left knee in June 1999. The standing and lateral views of the left knee demonstrated no joint space narrowing, and there was no evidence of acute injury. The impression was a normal left knee. At a June 1999 general medical examination, the Veteran was diagnosed with neurological issues on the left side of the body, but not particularly with the left knee; she maintained full range of motion upon examination in both of her lower extremities. At the June 1999 joints examination, the Veteran complained of pain in her left knee since five years ago, stating that the left knee had a history of giving out on her every now and then. She reported that her joints hurt in cold weather. Various tests were conducted and the Veteran did not demonstrate pain with flexion or extension; there was minimal joint effusion, and no impression for the left knee was given. In an October 2000 correspondence, the Veteran indicates that she has had joint pain since 1992 during the Gulf War. In 2000 and 2001 VA treatment records, the Veteran complained of left side problems, but the findings on her extremities were normal. Treatment records from 2003 through 2005 show primary complaints of lower back pain. Upon evaluation in October 2003, there appear to be an assessment of knee arthralgia, however there was no abnormal pathology identified for either knee. All joints were full and unimpaired. The Veteran underwent a joints VA examination in March 2007 where a diagnosis of minimal DJD of the bilateral knees was noted. She told the physician that the pain began in 1983 in her knees; there was no specific injury at the time and the onset of pain was slow and gradual. She reported that the onset occurred while she was stationed on a ship and was constantly going up and down ladders. She saw a physician and it was treated conservatively during service. Her bilateral knee pain gradually worsened over the last 20 years. The left was worse than the right. She complained of occasional instability, swelling, and locking on the bilateral knees. She wears bilateral knee braces without other assistive devices. VA X-rays were conducted in March 2007 of the bilateral knees and the results were compared to the 1999 VA X-ray studies which showed a normal left knee. There was no previous right knee study. There was no acute fracture, dislocation, or radiopaque foreign body. There was probably small joint effusion on each side of the knees with minimal medial compartment narrowing of the left knee. The heights of the other compartments of the knees appear maintained. The impression was "minimal medical compartment narrowing for the left knee. Traces of joint effusions bilaterally." Finally, the Veteran underwent a VA examination in June 2015 in connection with the claims. Mild bilateral osteoarthritis of the knees was confirmed by X-ray evidence. Her examination was entirely normal, with no decreased range of motion, no laxity, and with normal strength, reflexes, and sensation. A medical opinion was provided (see discussion below). In sum, it appears that any complaints that were self-reported by the Veteran in service were not confirmed by physicians who rendered the physical examinations. Overall, the service treatment records show that there was no abnormal knee pathology, bilaterally. It is also expected that any abnormalities involving the knees would have been documented by the separation examiner during the clinical evaluation in some manner if found in the course of such a regularly-conducted activity. By its very nature, the separation examination was intended to be a comprehensive accounting of the Veteran's past medical history during service. In fact, where records are regularly kept for such a purpose, the absence of any record of an event or condition may be considered affirmative evidence of its nonoccurrence if the condition would normally have been recorded during the regularly conducted activity if it had occurred. See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013). As such, the Board finds that the separation examination report showing no defects at the time of separation from service to be more probative than the Veteran's statements that she experienced knee pain stemming from service which later manifested into her osteoarthritis. While the Veteran has claimed pain in the knees either on her self-reports of medical health or to treating physicians, VA treatment records are silent for any diagnoses of left or right knee disease or any notations of pathology underlying the Veteran's complaints of pain until 2007, approximately six years since separation from service, when the evidence first demonstrates abnormal knee pathology upon X-ray studies. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-62 (Fed. Cir. 2001). The Veteran, while competent to state that she has had ongoing knee pain, is not competent to diagnose an underlying disease or pathology such as arthritis or the onset of such disease process. The Board finds that the various examination reports, as evaluated and completed by a medical professional, both during service and thereafter, to be more probative evidence than the Veteran's assertions of continuity and chronicity of her bilateral knee disability. Because there is otherwise no competent or credible evidence of symptomatology since service, a grant of service connection cannot be made on this basis. See 38 C.F.R. § 3.303 (b). Finally, the conditions are not shown to have been manifested to a degree of 10 percent or more within one year of service separation. For these reasons, a nexus is not established on the basis of chronicity or continuity pursuant to 38 C.F.R. § 3.303 (b), or presumptively under 38 C.F.R. § 3.307 (a). (ii) Direct Service Connection As mentioned, the Veteran's joints upon examination for retirement or separation were normal. As far as the nexus between the DJD/osteoarthritis that manifested post-service and the events in service that the Veteran alleges having occurred - i.e., MVA, physical training - the Board finds that the most probative evidence is the opinion of the June 2015 VA examiner, who performed a physical examination of the Veteran, conducted and interpreted X-ray studies along with other relevant testing, considered the Veteran's self-reported history and the evidence of record, and rendered a medical opinion based upon her understanding of the Veteran's facts and known medical principles. The June 2015 examiner ultimately opined that it was less likely than not that the Veteran's left and right knee mild osteoarthritis were related to service. While, admittedly, the examiner's organization of her medical opinion was not ideal, making it appear, at first glance, as if she did not completely address direct and secondary service connection, when reading the opinion in the full context of the examination report in its entirety, the Board finds that the opinion provides adequate rationale. Essentially, the examiner noted that there is no documented medical evidence indicating diagnosis or treatment of a left or right knee condition in service, despite the contentions of the Veteran (i.e., her reports of a MVA in 1982 and a history of arthrocentesis). The examiner goes on to explain that arthritis in this Veteran is very minimal and "[t]his is a condition of wear and tear that develops over the years . . . ." While imperfect, the Board considers the rationale supporting the June 2015 VA medical opinion to be generally plausible and consistent with the record. Caluza, 7 Vet. App. at 510-511; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Certainly, there is no other competent, credible, and more probative evidence of record on the issue of nexus. The only remaining opinion is that of the Veteran. To this end, she has submitted numerous statements in support of her claims, and they have been considered by the Board. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is competent to attest to her experiences of knee pain, to include the onset and duration of such pain and whether the pain feels more exacerbated by her abnormal gait because of the pain in the opposite knee. However, absent such an opinion by a medical professional in support of a positive association between the knee disabilities and service, the Veteran's statement alone as to causation and etiology are not competent. The Veteran's testimony as to the development of her osteoarthritis is an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's testimony in this regard is not competent and, to the extent that it is, the Board finds that the probative value of the June 2015 VA examiner is of greater value than the Veteran's more general lay assertions as to the issue of causation and etiology. In short, the competent, credible, and most probative medical opinion weighs against the existence of a link between the Veteran's left and right knee disabilities and service, and ultimately, the claims. As such, the Board finds that the preponderance of the evidence is against establishing the final prong needed for service connection on a direct basis. (iii) Secondary Service Connection The Veteran avers that that her bilateral knee disabilities are worsened by her service-connected left sided weakness. Additionally, she testified that her right knee disability is due to her service-connected left sided weakness; she has symptoms such as calluses on her right foot and places weight on her right side. She indicated that she has an abnormal gait because of the weakness on her left side, which causes her to stumble as she experiences balance issues. Again, the most probative medical opinion weighs against the argument that either knee disability has been caused or aggravated by a service-connected disease or injury. The June 2015 examiner specifically considered the Veteran's history and statements and opined that there was no right knee disability that was aggravated by the left knee or due to weakness and nerve/muscle changes of the left knee (there was no such evidence of such nerve and muscle changes of the left knee upon examination). It can be reasonably inferred and plausible, when considering the entirety of the examination report, that the examiner finds that this Veteran's mild bilateral knee disabilit, manifested by minimal arthritic changes, is not the type of disability that is caused or aggravated by the left knee or left leg weakness; she states that this type of arthritis is a product of wear and tear that develops over the years. This examiner found that the Veteran's current osteoarthritis is unrelated to service or any other disease or injury. Certainly, there is no other competent, credible, and more probative evidence of record on the issue of nexus for secondary service connection. The Veteran's statements are not competent in this regard, as explained above. See supra, discussion on direct service connection. As such, the Board finds that the preponderance of the evidence is against establishing the final prong needed for service connection on a secondary basis. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Thus, the claims must be denied. ORDER Service connection for a left knee disability, to include as secondary to service-connected left sided weakness, is denied. Service connection for a right knee disability, to include as secondary to service-connected left sided weakness, is denied. ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs