Citation Nr: 1805808 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-17 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a variously diagnosed left knee disability. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for coronary artery disease, to include as secondary to hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1974 to June 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the New Orleans, Louisiana Department of Veteran Affairs (VA) Regional Office (RO). The issues of service connection for hypertension and coronary artery disease are being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran's right knee complaints in service were acute, and resolved without residuals; a chronic right knee disability was not manifested in service; and any current right knee disability is not shown to be etiologically related to the Veteran's service, to include the complaints noted therein. 2. The Veteran's left knee complaints in service were acute, and resolved without residuals; a chronic left knee disability was not manifested in service; and any current left knee disability is not shown to be etiologically related to the Veteran's service to include the complaints noted therein. CONCLUSIONS OF LAW 1. Service connection for a right knee disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Service connection for a left knee disability is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A ; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs) and pertinent postservice treatment records are associated with the record. He was afforded an examination in connection with these claims in October 2011. He has not identified any pertinent evidence that is outstanding. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as deemed appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, to include arthritis, may be presumed to be service connected if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). An August 1974 service entrance examination report is silent for complaints, findings, or diagnoses related to either knee. A March 1977 STR notes that the Veteran reported left knee pain that became severe when he reported to the aid station. On examination, the knee was swollen, hot, tender to palpation, and had limited flexibility. X-rays were negative, and the diagnosis was chondromalacia patella, left knee. An August 1978 STR notes that the Veteran reported left knee pain. There was no swelling. The Veteran was directed to use balm and ace wrap. An August 1979 STR notes that the Veteran reported pain in both knees on walking that had been present for two months. On examination there was no swelling. He was provided aspirin and directed to use hot soaks and wear knee bands. On May 1981 service separation examination, the knees were normal on clinical evaluation; in a report of medical history at the time, the Veteran did not report any lower extremity joint issues. On October 2011 VA examination, the Veteran reported that he developed pain in his left knee after physical training in Germany in 1977 during service. He reported that he was admitted to the hospital for three days and was placed on light duty for 3-4 weeks. He reported that he had pain in both knees in August 1979. He related that he continued to have pain in both knees during service, but he self-treated with pain medication and wrapped his knees. He reported that his knee pain had increased over the last five years. He reported daily knee pain and stiffness that resolved at bed time. He took Advil and wrapped his knees. The examiner noted a diagnosis of chondromalacia patella in service and current diagnoses of chronic knee strain of both knees. Degenerative or traumatic arthritis was not shown on X-rays. The examiner opined that the Veteran's current right and left knee diagnoses were not related to military service. He explained that the previous diagnosis of left knee chondromalacia patella resolved in service, as there was no notation of knee pain on the Veteran's service separation examination. The examiner further explained that the current chronic bilateral knee pain was more likely than not related to the repetitive actions required in his current occupation as he had to frequently walk on concrete surfaces and climb ladders. Right Knee It is not in dispute that the Veteran has a right knee disability, as right knee strain was diagnosed on October 2011 VA examination. It is also not in dispute that he was seen for complaints of bilateral knee pain in service. What he must still show to establish service connection for a right knee disability is a nexus between such disability and his service/complaints noted therein. The right knee complaints in service were acute and resolved. The Veteran's knees were normal on service separation examination. Accordingly, service connection for a right knee disability on the basis that it became manifest in service and persisted is not warranted. Regarding any assertions the Veteran has made that he has had persistent problems with his right knee since service, the Board finds such to be self-serving, contradicted by contemporaneous clinical records, and not credible. The earliest postservice documentation of a right knee problem is in the report of an October 2011 (30 years after service) VA examination (when the Veteran did not indicate when after service he first sought treatment for knee pain, but merely reported that knee pain had increased in the five years prior to the examination). Notably, during the intervening period between service and the VA examination, the Veteran engaged in employment that the examiner found to be an etiological factor for the current knee complaints. As arthritis of the knee has not been diagnosed, the chronic disease presumptions of 38 U.S.C. §§ 1112, 1137 do not apply. What remains for consideration is whether or not the Veteran's right knee disability is otherwise shown to be etiologically related to his service. Whether in the absence of a finding of continuity, as here, a current right knee disability may be related to remote complaints in service is a medical question not capable of resolution by lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only medical evidence in the record that addresses that question is in the October 2011 VA record opinion (that is against the Veteran's claim). The October 2011 examiner opined that the Veteran's current right knee diagnosis is unrelated to his service. He noted the complaints in service and that no knee disability was found on service separation examination. He identified a more likely etiology for the Veteran's current right knee disability, repetitive actions (walking on concrete and climbing ladders) required in his employment, and opined that the complaints in service were acute and resolved. As the opinion reflects familiarity with the entire record and includes rationale that cites to factual data, the Board finds it highly probative evidence in this matter. In the absence of competent evidence to the contrary, the Board finds it persuasive. The Veteran's own belief that his current right knee disability is related to his service complaints therein, is not probative evidence in the matter. He is a layperson, and does not cite to a supporting medical opinion or treatise. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for a right knee disability. Therefore, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal must be denied. Left Knee It is also not in dispute that the Veteran has a left knee disability, as left knee strain was diagnosed on October 2011 VA examination. Furthermore, it is not in dispute that he was seen for left knee complaints in service, and that chondromalacia patella was then diagnosed. What he must still show to establish service connection for a left knee disability is a nexus between such disability and his service/complaints noted therein. A chronic left knee disability was not manifested in service. The left knee complaints (and diagnosis of chondromalacia) therein were acute and resolved, as reflected by the normal findings on service separation examination (and no pertinent notation in history elicited at the time). Any allegation that the Veteran has had persistent problems with his left knee since service are self-serving, contradicted by contemporaneous clinical records, and not credible. The earliest postservice documentation of a right knee problem is in the report of an October 2011 (30 years after service) VA examination (when the Veteran did not indicate when after service he first sought treatment for knee pain, but merely reported that the knee pain had increased in the five years prior to the examination). Consequently, service connection for a current left knee disability on the basis that it became manifest in service and has persisted since is not warranted. As arthritis of the left knee has not been diagnosed, the chronic disease presumptive provisions under 38 U.S.C. §§ 1112, 1137 have no application. What remains for consideration is whether or not the Veteran's left knee disability is otherwise shown to be etiologically related to his service. Whether in the absence of a finding of continuity, as here, a current left knee disability may be related to remote complaints in service (and a diagnosis of chondromalacia then made) is a medical question not capable of resolution by mere lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only medical evidence in the record that addresses that question is in the October 2011 VA record opinion that is against the Veteran's claim. The October 2011 examiner opined that the Veteran's current left knee disability is unrelated to his service. He noted the complaints in service, and that there was no notation of similar complaints on the Veteran's service separation examination, and found that the chondromalacia patella had resolved. He identified a more likely etiology for the left knee disability, indicating it was more likely than not related to repetitive action (walking on concrete and climbing ladders) required in the Veteran's current occupation. As the opinion reflects familiarity with the entire record and includes rationale that cites to factual data, the Board finds it highly probative evidence in this matter. In the absence of competent evidence to the contrary, the Board finds it persuasive. The Veteran's own belief that his current left knee disability is related to his service complaints therein, is not probative evidence in the matter. He is a layperson, and does not cite to a supporting medical opinion or treatise. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for a left knee disability. Therefore, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal must be denied. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. REMAND Further development is needed with respect to the claims seeking service connection for hypertension and coronary artery disease. The Veteran noted in his May 2014 Form 9 that Dr. Paxel has been providing him coronary treatment since 1984, and in his November 2012 notice of disagreement he noted that he was found to have high blood pressure in 1984. The private records identified may contain pertinent information, but have not been sought; they must be secured on remand. [The claim of service connection for coronary artery disease, to include as secondary to hypertension, is inextricably intertwined with the claim of service connection for hypertension, and consideration of that claim must be deferred pending resolution of the service connection for hypertension claim. Accordingly, the case is REMANDED for the following : 1. The AOJ should ask the Veteran to identify the providers of all evaluations and treatment he has received for hypertension and coronary disease and to provide releases for VA to obtain complete records of the evaluations and treatment from the private providers identified (to specifically include records from Dr. Paxel). The AOJ should secure complete records from the providers identified. If any records sought are unavailable, the Veteran should be so notified. If he authorizes release of records, but the provider in question does not respond to AOJ's request, he should be advised that ultimately it is his responsibility to ensure that private records are received. 2. The AOJ should then review the record and arrange for any further development suggested by records received (e.g. an examination for a nexus opinion if records received suggest hypertension or CAD may be related to the Veteran's service), and readjudicate the claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs