Citation Nr: 1752480 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-44 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to December 1965. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2010 rating decision in which the RO denied service connection for right knee osteoarthritis. In April 2014, the Board remanded the claim for an additional medical opinion. In August 2016, the Board denied the claim of entitlement to service connection for a right knee disorder. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (the Court). In August 2017, the Veteran and the Secretary of VA submitted a joint motion (Joint Motion) for partial remand. In September 2017, the Court granted the joint motion for partial remand and remanded the issue of entitlement to service connection for a right knee disorder. Subsequent to a May 2015 supplemental statement of the case, the Veteran submitted another statement from his private doctor relating his right knee disorder to active service. That statement is cumulative of another statement and medical record from that doctor. Even if that statement were not cumulative, in May 2015 the representative waived initial consideration by the agency of original jurisdiction (AOJ) of any additional evidence submitted by the Veteran. 38 C.F.R. § 20.1306(c) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDING OF FACT While the Veteran sustained an injury to the right knee in service, a chronic right knee disorder was not demonstrated in-service, and the probative medical opinion evidence as to a nexus between a current right knee disorder and service weighs against the claim. Arthritis was not manifest to a compensable degree within a year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 1111, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letters dated in January 2010 and May 2014. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Other than the adequacy of a January 2015 VA examination, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott, 789 F.3d at 1381 (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 duty to assist argument). In an October 2017 appellant's post-remand brief, the representative stated that the January 2015 VA examination report is inadequate. In April 2014, the Board directed the AOJ to obtain a medical opinion on whether the right knee disorder is related to the in-service right knee puncture wound. The January 2015 VA examiner specifically addressed whether the right knee arthritis is related to a puncture wound. The Board finds that the January 2015 examination is adequate to satisfy VA's duty to assist in that it was based on a thorough review of the record, consideration of the Veteran's contentions, and a supportable rationale. The Board finds there has been substantial compliance with its April 2014 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Governing law and regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran's claim. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. Analysis Private treatment records and VA examination reports reflect a diagnosis of right knee osteoarthritis. The Board has reviewed all of the evidence of record, to include service, VA, and private treatment records; the VA examination reports; and the opinions of Dr. N. The weight of the evidence is against finding that a right knee disorder was demonstrated in-service, that arthritis of the right knee was compensably disabling within a year of separation from active duty, or that there is a nexus between the current diagnosis of a right knee disorder and service. The Veteran's service treatment records reveal that in November 1965, the Veteran spent 17 days in a hospital or infirmary due to a puncture wound of the right knee. X-rays were negative. He was diagnosed with synovitis of the right knee secondary to a puncture wound. On December 6, 1965, he was noted to have a full range of motion and no swelling. He returned to duty December 7, 1965. On his December 10, 1965 clinical separation evaluation, the Veteran was found to have a normal examination of the lower extremities. On his December 1965 report of medical history, the Veteran noted he had a history of cramps in his legs, but no knee joint issue was noted. He denied having any illness or injury not otherwise noted on the evaluation. There is conflicting medical evidence on whether the right knee disorder is related to active service. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. There is no evidence that the arthritis of the right knee was compensably manifested within one year of separation from active duty. Arthritis of the right knee was first diagnosed in 1997. An April 2010 VA examination report reflects that the date of onset for the right knee osteoarthritis was 1965. Yet, the VA examiner opined that the Veteran's current right knee disability was less likely than not caused by his in-service right knee puncture wound because the Veteran's separation examination, after the date of injury, was negative for problems referable to the right knee. The notation that the date of onset of the right knee osteoarthritis appears to be a history given by the Veteran. Bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Even if it is not a history given by the Veteran, the examiner essentially later determined that the date of onset of the right knee osteoarthritis was later than 1965 by opining that the arthritis was less likely than not caused by his in-service right knee puncture wound. In an October 2010 private treatment record and in three statements dated in November and December 2010 and in June 2015, Dr. N opined that the right knee osteoarthritis is related to an in-service injury. For example in the June 2015 statement, Dr. N. noted that the Veteran "sustained a knee injury during service in Vietnam. As a result of this knee injury, [the Veteran] has developed osteoarthritis in his right knee. More likely than not, trauma to his right knee is related to his service." While Dr. N. related the current disability to an in-service knee injury, Dr. N. did not review the service treatment records showing only a puncture wound to the right knee nor did Dr. N. address whether a puncture wound could cause osteoarthritis. The January 2015 VA examination report shows that the Veteran was noted to have degenerative arthritis of both knees, diagnosed in 1997. The examiner opined that the Veteran's right knee osteoarthritis was less likely as not caused by his service and in-service injury because his "service exit examination was normal, there was no documented right knee care proximal to service discharge, advanced osteoarthritis also appeared in the contralateral non-injured joint to a generally comparable degree having been first observed in both knees many years following active service, puncture wounds are not the cause of osteoarthritis in the absence of direct joint damage, the effects of an interceding right knee infection cannot be excluded and because reported knee pain is neither sensitive nor specific for the diagnosis of osteoarthritis to the exclusion of other diagnoses if any." The Board places great weight on the opinion of the January 2015 VA examiner because he not only reviewed the service treatment records but also addressed with specificity whether the in-service puncture wound could cause osteoarthritis. In other words, his opinion is based on more than just a review of the service treatment records. Dr. N. did not review the service treatment records. The Board is not discounting the opinion of the Veteran's private doctor solely because that doctor did not review the service treatment records. Nieves-Rodriguez, 22 Vet. App. at 304. Rather, the question is whether Dr. N. was informed of all relevant facts in rendering a medical opinion. Id. In this case, the private physician was not informed of the specific nature of the in-service injury. Moreover, the private doctor did not provide a basis for the opinion. Therefore, the Board gives little weight to the opinion of Dr. N. As noted by the parties to the Joint Motion, a February 2010 VA treatment record reflects that the Veteran is claiming continuity of symptomatology. That treatment record reveals that the Veteran reported having had right knee pain since his in-service knee injury. A June 1997 private treatment record, however, reveals that the Veteran reported that he had had intermittent right knee discomfort over only the last year or two. Moreover, the January 2015 VA examiner essentially rejected this claimed continuity of symptomatology in rendering a negative medical nexus opinion. The Veteran is competent to report continuity of symptomatology, but the Board does not find his reporting to be persuasive in light of the conflicting reports by the Veteran. The Veteran has related his right knee osteoarthritis to the in-service knee injury. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the following relationship - between osteoarthritis of the knee and a puncture wound of the knee - falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In summary, for the reasons and bases set forth above, the Board concludes that the most probative and persuasive evidence weighs against a finding that the Veteran's osteoarthritis of the right knee is related to service. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Entitlement to service connection for a right knee disorder is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs