Citation Nr: 1738136	
Decision Date: 09/11/17    Archive Date: 09/22/17

DOCKET NO.  12-09 403	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for left knee enthesopathy.


ATTORNEY FOR THE BOARD

N. Laroche, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from January 1979 to March 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, inter alia, denied the Veteran's claim for entitlement to service connection for left knee enthesopathy.  In March 2012, the Veteran perfected his appeal to the Board (via a VA Form 9). 
In December 2013, the Board remanded the claim for further development.  

The Board notes that in March 2017, the Veteran was informed that his December 2011 VA Form 21-22, in favor of Burton Aikman and Alpha Veterans Disability Advocates, was deficient because neither the agent nor the organization is accredited.  The letter explained that if the Veteran did not appoint another representative within 30 days of the date of the letter, VA would assume he wished to represent himself.  As the Veteran has not responded, the Board assumes that he wishes to represent himself and therefore considers him unrepresented on this appeal.


FINDING OF FACT

The preponderance of the evidence is against a finding that the Veteran's diagnosed left knee enthesopathy is related to his in-service knee injury and symptoms.  


CONCLUSION OF LAW

The criteria for service connection for a knee disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303(2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
 
Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran has not raised any issues with regard to the duty to notify or duty to assist, nor have any such issues been raised by the evidence of record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.

II. Analysis

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 military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service.  38 C.F.R. § 3.303(d).

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 current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

The Veteran contends that his diagnosed left knee enthesopathy was caused by an in-service injury and is therefore related to service.

Service treatment records reflect that in September 1979, the Veteran was seen for a left knee injury in the emergency room.  The examiner noted a small laceration over the left patella.  At the time of the examination, the Veteran was limping and felt tenderness on his entire patella.  Range of motion testing revealed pain at 60 degrees of flexion.  The examiner also noted mild effusion.  His patella and ligaments were noted as within normal limits with the exception of tenderness.  He was assessed to have a contusion in his left knee.  X-ray findings revealed no abnormalities.  He was seen in follow up for pain in his left knee related to the injury two weeks later.  The examiner noted tenderness while walking on his patella.  The examiner reported that there was healing on his abrasion on his left patella area.  There was no effusion and the Veteran had full range of motion and good strength.  

In a November 1979 report of medical examination, a normal clinical evaluation was noted for the Veteran's lower extremities.  Likewise, in the report of medical history, the Veteran did not complain of pain or injury to his left knee.

The Veteran was seen in December 1979 for a left knee injury.  The Veteran reported that he was doing physical training and his knee popped.  He experienced pain since the injury.  The examiner noted that the Veteran's range of motion was "very good."  The examiner also noted that the laceration from his prior left knee injury healed, but there was some pain upon palpation on the lacerated area.  The Veteran was assessed with a mild contusion.

Treatment records from the Kentucky Department of Corrections reveal that the Veteran was seen in February 2008 for complaints of pain in his feet.  The examiner noted that the Veteran had a normal appearance for ambulation, mounting, and dismounting from the examination room table. 

Medical treatment records reflect a diagnosis of enthesopathy patella of the left knee, confirmed by an x-ray, in March 2011.  His left knee was negative for joint disease.  Records from 2011 reveal multiple complaints of left knee pain.  The Veteran reported that his knee occasionally gave out when he was ready to climb the stairs or while getting in to the bus.  He also reported problems with kneeling on his left knee, occasionally.  The Veteran was also fitted for a knee brace.  
 
In a May 2011 statement, the Veteran reported that his left knee was injured while he was stationed at Fort Hood, Texas.  He reported that his knee was forced into a ceiling of a tank and caused him excruciating pain.  He reported that he was subsequently taken to the hospital, as reflected by his service treatment records.  He stated that there was more pain in his left knee as he got older.  He stated that he did not visit the hospital for his pain because he was poor and could not afford the medical bills.  

The Veteran underwent a VA examination in June 2011 for his left knee.  The examiner confirmed the Veteran's diagnosis of left knee enthesopathy.  After a review of the medical records, the examiner opined that the Veteran's current left knee disability is not caused by, a result of, or due to the left knee injury that occurred in service.  As rationale, the examiner noted that after the Veteran's September 1979 injury, an x-ray was found to be normal and the Veteran was diagnosed with a contusion and small laceration.  The examiner noted that complaints were documented through December 1979 during the recovery phase of the injury and at the last examination in service, his range of motion was normal and without pain.  The examiner further noted that his November 1979 medical history and examination revealed no joint or knee problems and since then, there are no documented complaints of left knee pain or problems until 2011.  The examiner reported that this 32 year timespan and the different unrelated diagnosis of the knee prevent the possibility of a nexus.  

In August 2011, the Veteran reported that that after separation, he would notice his left knee would go out at times, would ache, and would become troublesome.  He reported that he took over the counter medications because he already had a doctor's bill that he could not pay.  He reported that he was incarcerated from 2001-2010 and this was the first time he sought medical attention; however, they gave him ibuprofen.  

In November 2014, an addendum opinion was provided.  The medical professional opined that the Veteran's knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The medical professional noted the evidence of an in-service injury with a diagnosis of patellar contusion and effusion with a minor laceration.  An x-ray was completed at the time of injury which did not reveal any abnormalities.  The medical professional noted the Veteran's contention that he experienced his left knee going out at times; aching; pain going up stairs; and as he got older, pain when standing for more than half an hour.  However, the medical professional found that these complaints are not typical of an inflammatory process associated with enthesopathy.  The medical professional noted the Veteran's first complaint about his left knee was in March 2011, although he had been seen by medical providers and mental health providers in 2001 and 2002.  There is no evidence of knee complaints after discharge until 2011, when an x-ray of his knee revealed enthesopathy.  The medical professional explained that enthesopathy is the result of an inflammatory process and it is not the result of an injury.  The medical professional included medical literature that stated that enthesopathy is not typically associated with traumatic injuries.  

Considering the pertinent evidence of record in the above, the Board finds that the claim for service connection for his left knee disability must be denied.  

The Veteran has a current diagnosis of left knee enthesopathy; consequently, the issue at hand is whether there exists a nexus between his current disability and his in-service injury.  

As noted above, the Veteran underwent a VA examination in June 2011.  However, the examiner failed to address the Veteran's statements, rendering the opinion at that time inadequate.  Subsequently, in compliance with the Board's December 2013 remand, an addendum opinion was provided in November 2014.  The November 2014 VA medical professional did a complete review of the available records, to include medical records and the Veteran's statements, and opined that the Veteran's left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury.  Specifically, the medical professional noted that an x-ray was taken at the time of the in-service injury which revealed no abnormalities.  The medical professional also took into account the Veteran's statements and contentions; however, found the complaints atypical of an inflammatory process associated with enthesopathy.  Finally, the medical professional provided medical literature that noted that enthesopathy is not typically associated with traumatic injuries.  As the medical professional explained the reasons for her conclusion based on an accurate characterization of the evidence of record, this opinion is entitled to substantial probative weight.  See Nieves-Rodriguez, 22 Vet. App. at 304.  She also specifically addressed the Veteran's lay statements, thus remedying the deficiency in her prior opinion.

To the extent that the Veteran has opined that his left knee disability is related to service, 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).  In this case, the Veteran's testimony as to the etiology of his current left knee enthesopathy is testimony as to 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.  Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("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 statements in this regard are therefore not competent.  To the extent that these lay statements are competent, the Board finds the specific, reasoned opinions of the VA medical professional to be of greater probative weight than the Veteran's more general lay assertions.  Thus, the preponderance of evidence is against a relationship between the Veteran's diagnosed left knee enthesopathy and active duty service.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for left knee enthesopathy.  The benefit of the doubt doctrine is therefore not for application and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for left knee enthesopathy is denied.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs