Citation Nr: 1713167 Decision Date: 04/21/17 Archive Date: 04/26/17 DOCKET NO. 10-14 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a bilateral knee disability, to include as secondary to bilateral podalgia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1994 to August 1998 in the United States Army. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran provided testimony before the undersigned during a videoconference hearing in February 2016. A transcript of the proceeding is associated with the claims file. This case was previously before the Board in June 2016. At that time the Board found that new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for a bilateral knee disorder, but remanded for the underlying service connection issue for further development. The issue was re-characterized to entail all bilateral knee diagnoses identified in the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDING OF FACT The Veteran's current bilateral knee disability was not caused or aggravated by a disease or injury in active; or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a bilateral knee disability, to include as secondary to bilateral podalgia are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In a November 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what evidence was needed to substantiate her claim for service connection, as well as what evidence must be submitted by the Veteran and what evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. While the November 2008 letter does not address secondary service connection, a May 2006 letter does and the September 2016 Supplemental Statement of the Case (SSOC) contains the law for secondary service connection. Thus, the Board finds that VA's duty to notify has been met. The record also reflects that VA has made efforts to assist the Veteran in the development of her claim. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), service personnel records, VA treatment records, VA examination reports, private treatment records, and the statements of the Veteran. The Board does not have notice of any additional relevant evidence that is available but not obtained. The Veteran was afforded a VA examination in August 2016. The Board finds this examination report to be adequate, as the examiner reviewed the Veteran's claims file, interviewed the Veteran, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination and testing, and provided a reasoned rationale for the opinion rendered. The opinion shows that the examiner considered all relevant evidence of record, including the Veteran's statements. The Veteran also offered testimony before the undersigned VLJ at a Board hearing in February 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of Appeals of Veterans Claims (the Court) held that 38 C.F.R. § 3.103 (c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (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 undersigned VLJ noted the issue on appeal. Also, information was solicited regarding the onset of the Veteran's bilateral knee disability and her contention that her current bilateral knee disability is secondary to her service-connected bilateral foot disability. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, as above, the undersigned remanded the case for additional development, to include obtaining a VA examination and medical opinion. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein. As such, the Board finds that, consistent with Bryant, the undersigned VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board also finds that the agency of original jurisdiction (AOJ) has substantially complied with the Board's June 2016 remand directives. Specifically, the June 2016 remand directed the RO to obtain outstanding medical records (which was accomplished in September 2016), obtain a medical examination with a medical opinion (which was accomplished in August 2016), and readjudicate the case in a supplemental statement of the case (which was accomplished in September 2016). Therefore, the Board finds that the AOJ has substantially complied with the June 2016 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). II. Analysis The Veteran served in the United Stated Army from February 1994 through September 1998. During the February 2016 Board hearing, the Veteran testified that her bilateral knee disability manifested in 1995 after falling during basic training and that her pain has been continuous since the accident. Alternatively, the Veteran has argued that her bilateral knee disability is secondary to her service-connected chronic podalgia (pain in the feet) for which she is in receipt of a 20 percent disability rating. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Disabilities diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.310(a), (b) (2016). Service connection may also be granted for listed chronic diseases if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of "continuity of symptomatology" since service. 38 U.S.C.A. §§ 1101, 1112; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. Arthritis (degenerative joint disease) is a chronic disease for this purpose. A compensable rating for osteomalacia is warranted if there are X-ray indications of arthritis with noncompensable limitation of motion of the joint. See 38 C.F.R. § 4.17a, Diagnostic Codes 5003, 5014. The Veteran's STRs are silent for any symptoms, diagnoses, or treatment of either knee. Significantly, the Veteran's March 1998 separation examination shows normal lower extremities and in a March 1998 report of medical history the Veteran denied "trick' or locked knee," The Veteran acknowledged that she did not seek treatment for the knees during active service because she was more concerned about the pain in her feet. The first post-service evidence of a bilateral knee disorder is a 2005 private treatment record. The Veteran was diagnosed as having degenerative joint disease in 2005 and 2008 medical exams by a private physician. The Veteran underwent a VA examination in February 2006. This examiner diagnosed mild patellofemoral pain syndrome and opined that there was no evidence of causation or aggravation of the knees because of her feet. Unfortunately, this opinion solely concerned the theory of secondary service connection, and did not address direct entitlement. At a June 2006 VA examination, the Veteran was diagnosed as having mild patellofemoral pain syndrome. At a January 2009 VA examination, the Veteran the Veteran reported increasing foot problems since June 2008, which she blamed on the fact that her knees had started to bother her. VA outpatient treatment notes show that in September 2009, the Veteran reported that knee pain had begun in 1995. A disability benefits questionnaire completed by a private physician in April 2016, shows that the Veteran again reported knee pain that began in 1995 without any specific injury. The physician did not provide an opinion as to the relationship of the current knee disability and service or a service connected disability. Pursuant to the June 2016 Board remand, the Veteran was afforded a second VA examination in August 2016. This examiner also diagnosed bilateral patellofemoral pain syndrome. Significantly, the examiner opined that it was less likely than not that the claimed bilateral knee condition was caused by or related to her active service or aggravated by her bilateral podalgia. With regard to direct service connection, the examiner noted that while the Veteran contended that she experienced an onset of bilateral knee pain while in basic training; her records did not indicate any ongoing treatment or specific link between her current knee complaints and the occurrence in military service. Further, the Veteran's history of knee pain beginning in service was not consistent with the medical records as the February 2006 VA examination. At that examination, the Veteran reported bilateral knee pain beginning just eight months earlier (in 2005 though the Veteran was discharged from service in 1998). With regard to secondary service connection, it was noted that the Veteran had a normal gait. As such, there was no medical reason to suggest that the Veteran's service-connected bilateral foot disability in any way caused or aggravated her bilateral knee disability. Also, the examiner reviewed previous X-rays in the file from 2005, 2006, and 2009, and found no degenerative joint disease. Analysis Initially, the claim must be denied on a direct basis. First, STRs are negative for a bilateral knee disorder and the separation history and physical examination identified no physical abnormalities of the knees or complaints of knee pain. Rather, the earliest evidence of knee problems is dated in 2005. Moreover, the August 2016 VA examiner opined that the Veteran's bilateral knee disability was not incurred in service for the reasons stated above. The Veteran has provided competent reports that her disability began in service; but as pointed out above, her reports have not been consistent. Because of these inconsistencies, her reports of a knee disability dating back to service are not deemed credible. There is no other evidence of in-service incurrence or a continuity of symptomatology. The Board has also considered whether presumptive service connection for a bilateral knee disability is warranted. Although there are conflicting diagnoses, the Veteran was diagnosed with degenerative joint disease, which is a form of arthritis. The record, however, fails to show that the degenerative joint disease manifested in service or to a degree of 10 percent within the one year following her discharge from active duty. The first diagnosis took place in 2005, while the Veteran was discharged from service from active duty in 1998. As such, presumptive service connection for the Veteran's bilateral knee disability is not warranted. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The Board also finds that service connection for a bilateral knee disability as secondary to the Veteran's service-connected bilateral foot disability is not warranted. In this regard, the February 2006 and August 2016 VA examiners found that there was no relationship between the Veteran's current bilateral knee disabilities were not caused or aggravated by her service-connected bilateral foot disability because she had a normal gait. The Board places great probative weight on the August 2016 VA examiner's opinion that the Veteran's bilateral knee disability was not related to her service, to include secondary to a service-connected disability. The Board finds that the most recent August 2016 VA examination report clearly reflects consideration of an accurate history, including the Veteran's testimony that her bilateral knee disability began in service and provides adequate rationale supported by the service treatment records and the Veteran's post-service medical history. Furthermore, the opinion offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Therefore, the Board accords great probative weight to the VA examiner's opinion provided August 2016. Moreover, there is no other competent and credible opinion to the contrary. The causes of the Veteran's knee disability are not subject to lay observation and are not simple medical questions. Hence, her belief that the knee disabilities are caused or aggravated by her foot disability is not a competent medical opinion. The VA examiners are medical professionals, who have experience, education, and expertise that the Veteran is not shown to have. The VA examiners' opinions were based upon a review of the record. As such, they are afforded more weight than the opinion provided by the Veteran. The preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral knee disability. As such, reasonable doubt does not arise, and her claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a bilateral knee disability, to include as secondary to bilateral podalgia, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs