Citation Nr: 18151626 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 14-12 148 DATE: November 19, 2018 ORDER Entitlement to service connection for left knee disability is denied. REMANDED Entitlement to service connection for psychiatric disability, to include as secondary to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s left knee disability did not originate during active service and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for left knee disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1959 to June 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2014, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In September 2018, the Veteran was notified that the VLJ who conducted his hearing was no longer at the Board and he was informed of his right to a new hearing. As no response was received within the 30 day timeframe provided, the Board assumes that the Veteran did not wish to have a new hearing and will proceed accordingly. The transcript of his hearing is of record. These matters were remanded by the Board in February 2015, December 2015, and September 2016 for additional development. These matters have been returned to the Board for appellate consideration. A November 2017 rating decision by the RO granted entitlement to service connection for hearing loss and tinnitus. The RO’s grant of service connection for these issues constitute a full award of benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. Id. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). As an initial matter, the Board notes that VA received a letter from the Veteran’s service organization representative in March 2014, revoking Power of Attorney. This letter indicates that it was also sent to the Veteran. However, due to confusion regarding the Veteran’s address, it is unclear whether the service organization withdrew its representation of the Veteran. Additionally, the record reflects that the service organization has continued to assist the Veteran with his claims. As such, the Board finds that the service organization did not effectively withdraw the representation and continues to be the representative of record. The issue of entitlement to service connection for a psychiatric disability as secondary to service-connected disabilities, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Entitlement to service connection for left knee disability The Veteran’s representative argues that opinions provided by VA examiners in March 2017 and October 2017 are inadequate because these examiners did not provide adequate supporting rationales. Specifically, the Veteran’s representative contends that the examiners relied on the lack of knee complaints in the Veteran’s STRs and failed to address whether parachute jumps and carrying heavy backpacks could have resulted in a knee disability. As an initial matter, it is unclear which examination is being referred to as the March 2017 examination. The record reflects examinations dated in September 2015, February 2016 (which the Board previously found to be inadequate), October 2016, and October 2017. As the Veteran’s representative indicated the examinations in question occurred subsequent to the Board’s September 2016 remand, the Board will assume the Veteran is contesting the adequacy of the October 2016 and October 2017 VA addendum opinions. The October 2016 VA examiner’s opinion indicates that the Veteran’s left knee disability was less likely than not related to service because there was no evidence linking his left knee disability, which was reported and diagnosed in his 70’s, to a service injury over 45 years earlier. The Board finds that the opinion provided by the examiner is not adequate because the examiner did not follow the directives prescribed by the Board in its September 2016 remand, which included addressing the Veteran’s in-service parachute jumping in the service-connection opinion. However, the Board finds that the examiner who provided the October 2017 VA addendum thoroughly reviewed the Veteran’s available records, including the prior VA examinations, and as the Veteran was not present at the examination, the examiner provided an opinion based on the review of this evidence. The opinion noted a left knee disability and addressed the Veteran’s in-service parachute jumping. Therefore, the Board finds the October 2017 VA examination is adequate for the purpose of deciding the claim. Establishing service connection generally requires (1) evidence of 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 claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). 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. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STRs, including in-service medical evaluations and the Veteran’s separation examination, are silent for any complaints, treatment, or diagnoses related to any left knee disability. Post-service treatment records reflect numerous complaints related to the right knee but are largely silent for any complaints related to the left knee. For example, in May 2013, a treatment note indicates that the Veteran reported some chronic pain in his knees. Additionally, a March 2015 medical treatment record indicates that the Veteran had a knee sprain and osteoarthritis of the knee, but it does not specify which knee was affected. At his hearing in July 2014, the Veteran testified that while he was in service, he carried a 60 pound bag on his back containing radio equipment, parachuted out of airplanes, and ran long distances for his physical training. He indicated that he felt “twinges” of pain in his knees during service, but he never reported it. The Veteran underwent a VA examination in September 2015 for bilateral knees, in which the examiner noted some limited range of motion in the Veteran’s left knee and provided a diagnosis of mild osteoarthritis in the Veteran’s right knee. The examiner noted that there were no notes of knee pain in the Veteran’s STRs, including his separation examination, medical records were silent for bilateral knee complaints for decades after the Veteran’s service, and the Veteran denied complaints of bilateral knees during his VA examination. Additionally, the examiner indicated that previous trauma or injury such as para-jumping or carrying heavy backpacks may contribute to early development of degeneration of the knees, but evidence to support this finding was lacking. The examiner indicated that the diagnosis of mild osteoarthritis of the right knee was “impressive as more degenerative changes of the knee would be entirely medically expected” at the Veteran’s age of 77. In the October 2017 opinion, the VA examiner opined that it was less likely than not that the Veteran’s left knee disability had its onset during active service or was related to any in-service disease or injury, including the Veteran’s in-service parachute jumping, relying on the lack of documented evidence of knee complaints during or since service. The examiner indicated that without any documented evidence indicating knee complaints or a disability since service, the examiner was unable to render a medical opinion without resorting to mere speculation. The opinion also notes, addressing the September 2015 examination, the Veteran was asymptomatic at that time because there were no specific knee complaints noted when he was found to have right knee osteoarthritis. After a review of the evidence, the Board is unable to attribute the Veteran’s left knee disability to his military service. The earliest relevant medical evidence of record that indicates the presence of a left knee disability was decades after the Veteran’s active service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The opinions provided by the VA examiners are the more probative evidence of record. Although the opinion provided by the October 2017 examiner indicates that an opinion could not be provided without resorting to mere speculation, the lack of evidence indicating a left knee disability until many years later weighs against the Veteran’s claim. Moreover, there is no medical opinion of record indicating that the Veteran’s left knee disability was related to an injury or other event in active service. As noted above, the record in this case is negative for any indication, other than the Veteran’s own general assertion, that his left knee disability is related to his military service. While the Board acknowledges that the Veteran is competent to report symptoms of knee pain, he has not been shown to possess the medical training to render competent opinions about complex medical matters, such as the etiology of his disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a left knee disability. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. REMANDED ISSUE Entitlement to service connection for a psychiatric disability, to include as secondary to service-connected disabilities In the September 2016 remand, the Board instructed, in pertinent part, that if the Veteran was found to have a hearing loss or tinnitus disability, the Veteran should be scheduled for a VA examination to address whether the Veteran’s current psychiatric disability was secondary to his hearing loss and/or tinnitus. As noted above, the RO granted service connection for hearing loss and tinnitus in November 2017. The record reflects that the Veteran was indeed scheduled for a psychiatric examination in March 2018. The Board recognizes that there has been some confusion regarding the Veteran’s most recent address, and it is unclear based on the record whether the Veteran was notified of his scheduled VA examination. Generally, “it is the burden of the veteran to keep VA apprised of his whereabouts . . . [i]f he does not do so, there is no burden on the part of VA to . . . find him.” Hyson v. Brown, 5 Vet. App. 262, 265 (1993). However, as it is unclear whether VA even attempted to notify the Veteran of his pending VA examination, another remand is necessary. The matter is REMANDED for the following action: Reschedule the Veteran’s psychiatric examination, and notify the Veteran of the scheduled examination. If the Veteran is unable to report, forward the claims file to a psychiatric examiner for an opinion based upon the evidence of record. The examiner should indicate that the claims file, including the Board Remands, was reviewed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s psychiatric disability is proximately due to or the result of a service-connected disability. An explanation for all opinions expressed must be provided. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel