Citation Nr: 1702346 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 13-04 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty for training with the United States National Guard from January 1986 to April 1986, and from June 8, 1991 to June 22, 1991. On a report prepared in 1999, he is last shown to have been awarded points for retirement in 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned in a July 2014 hearing, and a transcript of the hearing is of record. The Board previously remanded the claim in February 2015. FINDINGS OF FACT 1. The Veteran's bilateral knee disability was not manifest during active service or within one year following separation from a qualifying period of active service, and is not shown to have developed as a result of an established event, injury, or disease during active service. 2. The preponderance of the evidence is against a find that the Veteran's bilateral knee disability was caused or aggravated by a service-connected right ankle disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right ankle disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board must 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. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and 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) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification requirements were met in correspondence to the Veteran dated December 2011. The Board also finds that VA's duty to assist has been satisfied in this case. VA has done everything reasonably possible to assist the Veteran with respect to the claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA and private health records. VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA provides a claimant an examination or obtains a medical opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120 (2007). A medical opinion is adequate when it is based on consideration of a Veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Ardison v. Brown, 6 Vet. App. 405 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was provided with multiple VA examinations, most recently in June 2015. The examiners reviewed the record, took into account the Veteran's contentions, and provided an explanation and rationale for all opinions. Therefore, the Board finds that the VA examinations were adequate. The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Additionally, in light of treatment records that have been obtained and associated with the record, performance of the requested examination, and the further adjudicatory actions taken by the RO, the Board finds that there has been substantial compliance with the prior remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Accordingly, the Board will proceed with a decision. Service Connection 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 2014); 38 C.F.R. § 3.303 (2016). To establish a service connection for a disability, a Veteran 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2016). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2016). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2016). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for arthritis may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2016). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In cases of aggravation of a non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2016). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). The Veteran contends that his bilateral knee disability was incurred in service, specifically resulting from bumps to his knees while training in vehicles. In multiple statements, most recently in a July 2014 hearing, the Veteran stated that while training in Bradley fighting vehicles, he often experienced contact of his knees to the metal vehicle. This contact resulted in what the Veteran called "monkey bumps." The Veteran stated he had no knee pads for protection, and that the bumps occurred every time he was in the vehicle. The Veteran also testified that his knees swelled, and that he took aspirin for the pain, and iced his knees. The Veteran's service records are silent as to any complaints of knee injury, pain, bumps, or swelling. In the July 2014 hearing, the Veteran explained that by stating that he never felt that the bumps were serious enough at the time to stop his duties, and he never went to sick call for the knee injuries. The Veteran stated that medics came around periodically and bandaged the troops and gave them aspirin, and "that was the way of it." A July 2014 buddy statement from W.C. corroborates the Veteran's testimony that medics routinely provided bandages and pain killers to soldiers in training, and that the injuries were not considered to need higher medical treatment or being sent to sick call. W.C. stated that he specifically witnessed the Veteran receiving medical treatment several times over the course of the time he was present, including a medic checking the Veteran's wrapped knee or knee brace, and providing the Veteran with aspirin or other pain relievers. Complaints of knee pain and objective evidence of the Veteran's knee disability did not first enter the Veteran's medical records until a September 1998 private exam. At that time, the Veteran presented with complaints of bilateral knee pain that began five weeks prior while playing softball and reported no previous knee pain or posterior knee swelling. The examiner diagnosed the Veteran with bilateral patellofemoral arthritis. In a contemporaneous letter, the private examiner stated a review of the Veteran's medical records dated back to 1987 showed no orthopedic complaint whatsoever, and that subsequent x-rays showed significant osteophyte formation on both kneecaps. The Veteran was referred to an orthopedic surgeon, and surgery was performed for meniscus repairs. In a September 1998 letter, the Veteran's orthopedic surgeon answered a series of questions posed, although it is unclear from whom. In response to the question "could past military job be somewhat related to the cause," the surgeon responded "yes." In response to other questions, the surgeon also stated that it would take years, not months, for kneecaps to develop bilateral patellofemoral arthritis, and that things such as overuse, squatting, long-term irritation, and wear and tear could cause that problem. In a September 1998 VA examination, the examiner noted that the Veteran stated his bilateral knee pain was recent, specifically occurring within the last month. The Veteran also stated that he never had problems with his knees before, but believed the knee pain was related to his service getting in and out of vehicles and striking against surfaces in vehicles.. X-rays conducted at the time of the examination showed signs of early degenerative change. The examiner noted bony density seen in the upper outer margin of both patellae, but doubted those represented posttraumatic deformities. At a November 2002 VA examination, the Veteran stated that he began having symptoms in his right knee in 1997 after being on maneuvers with the Army National Guard, and with the left knee in 1998 after a weekend of training in Bradley vehicles. He stated "their knees get banged around quite a bit," but that he did not remember any specific injury or going in for medical evaluation. X-rays of both knees were taken, and the examiner diagnosed knee pain due to early degenerative changes consistent with the Veteran's age, and secondary to medial meniscus damage and tear post-surgery. At a June 2015 VA examination, the examiner opined that the Veteran's bilateral knee disability was less likely than not caused by in-service injury. The examiner explained that the Veteran's records clearly did not show problems with his knees until 1998, when the bilateral knee pain was first documented. The Veteran's knee pain was diagnosed as arthiritis, and he had meniscus repairs to both knees in 1998, 2002, and 2004. The examiner explained the Veteran's arthritis worsened due to and following those surgeries. The examiner found no objective medical evidence supporting a diagnosis during service, or any knee problems prior to 1998. The examiner considered the lay statements of the Veteran and others in the record, but stated that those provided no evidence of injuries or complaints originating during active duty, rather they illustrated a picture of a healthy and active Veteran through the early 1990s. The examiner opined that the Veteran's bilateral knee arthritis was likely the result of his playing sports and umpiring, which may lead to early degenerative joint disease. The examiner also opined that the meniscus repairs the Veteran underwent for arthritis may lead to and exacerbate existing arthritis. The Board finds that service connection for a bilateral knee disability is not warranted. There is no question that the Veteran has a current diagnosis of arthritis in both knees. However, the preponderance of the evidence does not establish a nexus between the disability and qualifying active service. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). On the contrary, the evidence weighs against such a finding. The first objective evidence of the Veteran's knee disability is in September 1998 records, in which the Veteran clearly stated he had no prior knee pain or problems, and that the current knee pain began several weeks prior. The Veteran was diagnosed with early arthritis consistent with his age, and the June 2015 VA examiner expressly opined that the Veteran's bilateral knee arthritis was less likely than not related to active service. The June 2015 examiner took into account the lay statements by the Veteran and the Veteran's fellow service-member in coming to that opinion. However these statements did not provide objective evidence that the Veteran's current bilateral knee disability was related to knee bumps in service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board has additionally considered if service connection for arthritis should be granted as a chronic disease pursuant to the provisions of 38 C.F.R. § 3.309(a). The Board finds that the Veteran is not entitled to presumptive service connection for arthritis as a chronic disease. The Board finds that the evidence of record does not show a continuity of symptomatology to an inservice chronic disease as arthritis was first shown in 1998 and at that time the Veteran stated the knee problems were of recent origin. Thus, the Board finds that the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2016). In the alternative, the Veteran contends that his bilateral knee disability was caused or aggravated by a service-connected right ankle disability. The June 2015 VA examiner noted that the Veteran was diagnosed with degenerative changes consistent with his age in both knees, and had meniscus repairs to both knees, after which the bilateral knee arthritis worsened. The examiner explicitly opined that the Veteran's knee condition was related to that arthritis, and the Veteran's service-connected right ankle disability thus did not cause or aggravate the bilateral knee disability beyond its natural progression. The Board acknowledges the statements of the Veteran, his spouse, ex-spouse, and fellow service member, and finds the Veteran competent to report pain in his joints and extremities. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board has considered the Veteran's contention that his bilateral knee arthritis was caused by "monkey bumps" experienced during service. However, the Board considers the records and opinions of the private and VA examiners to be highly probative and persuasive, and to outweigh the lay statements. The examiners have medical training, reviewed all available medical records, including those enumerating the Veteran's complaints, and concluded that the Veteran's knee pain results from arthritis that is consistent with the Veteran's age and meniscus repairs. In both private and VA examinations in 1998, the Veteran stated he had no prior pain or problems with his knees. Although the Veteran's orthopedic surgeon stated the Veteran's knee problem may be related to military service, the surgeon provided no explanation or rationale for that opinion, and it is merely speculative. Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of may also implies may or may not and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4 (1993) (doctor's statement framed in terms such as could have been is not probative); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (may or may not language by physician is too speculative). The Veteran has not submitted any other competent and credible evidence suggesting a nexus between current bilateral knee arthritis and active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection a bilateral knee disability, to include as secondary to a service-connected right ankle disability, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected right ankle disability, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs