Citation Nr: 0007248 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 95-30 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Cote, Associate Counsel INTRODUCTION The veteran had active service from November 1990 to April 1992. This matter comes before the Board of Veterans' Appeals from a July 1995 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in which service connection for bilateral knee arthralgia was denied. The veteran has perfected an appeal of the July 1995 decision, which appeal is now before the Board. Also in the July 1995 rating decision, the RO denied the veteran's claim of entitlement to service connection for a low back condition. The veteran subsequently perfected a timely appeal regarding this decision. Thereafter, in May 1996, the RO granted service connection for a low back condition and assigned a non-compensable disability rating. To the Board's knowledge, the veteran has not expressed disagreement with the disability rating or effective date assigned. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200, 20.201, 20.202, 20.302 (1999). As the veteran has not initiated an appeal regarding this decision, the Board finds that the RO's May 1996 decision represented a full grant of the benefit sought. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barerra v. Gober, 112 F.3d 1030 (1997). Therefore, the Board concludes that the issue of entitlement to service connection for a low back condition is no longer before the Board on appeal. The Board notes that during a February 1996 hearing before a hearing officer at the RO, a claim for service connection for a back condition other than the low back (i.e. cervical spine) was added by the hearing officer and found not well grounded in a February 1996 decision. In March 1997, the hearing office determined that the claim for service connection relating to the cervical spine was not formally on appeal and the Board will not adjudicate the matter. FINDINGS OF FACT The claim of entitlement to service connection for bilateral knee disability is not supported by competent evidence showing a current knee disability. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for bilateral knee disability is not well grounded. 38 U.S.C. § 5107(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the veteran's enlistment examination in August 1990, no abnormalities of the knees were noted. During a January 1992 examination, the veteran indicated that he had experienced left knee pain for seven months prior to the examination. He denied direct trauma. A history of edema, locking, and "giving-out" of the knee was reported. The veteran complained of increased knee pain when running hills. No swelling, redness, or deformity of the left knee was noted. Crepitus and slight pain to palpation were observed. McMurray and Lachman signs were negative. Lateral and medial collateral ligament laxity was normal. Retropatellar pain syndrome (RPPS) was assessed. Motrin was prescribed. RPPS was again assessed during a January 1992 follow-up examination. During a February 1992 examination, the veteran complained that he had been experiencing right knee pain for one month. Popping and snapping on top of the knee was reported. No redness, swelling, deformity, or tenderness to palpation was observed. The examiner noted intermittent popping over the right patella. Palpable crepitus over the patellar tendon and mild tenderness to palpation of the patellar tendon was observed. RPPS and tendonitis were assessed. March 1992 service medical records indicate that the veteran was diagnosed with RPPS of the left knee and tendonitis. His knee reportedly popped, which was noted as crepitus. The veteran complained of pain when climbing stairs and running. The veteran was afforded a VA orthopedic examination in May 1995. He indicated that his knees had been bothering him since 1980. He reported that he observed popping and cracking and later observed soreness in the knee joints. No locking, swelling or "giving way" was reported. He indicated that his knees looked like they were inflamed at times, but he did not consider it a great deal of swelling. Physical examination revealed no knee abnormalities. No swelling or effusion was noted. The knees were stable and the cruciate and collateral ligaments were found to be in tact. McMurray, pivot shift and Lachman signs were negative. Repeated patellar grinding tests were negative in each knee joint and no pain was noted. Range of motion was found to be from 0 degrees of extension to 150 degrees of flexion and free from pain at full flexion and extension. A radiology examination of the knees found bony mineralization within normal limits. Narrowing of the patello-femoral compartments was borderline. No evidence of fracture or dislocation was noted. Soft tissues were found to be unremarkable. A notation of "question chondromalacia" was noted, but the veteran's knees were otherwise found to be normal. Mild arthralgia of both knee joints was assessed during a contemporaneous orthopedic examinations. During the February 1996 hearing, the veteran denied that he had problems with his knees prior to service. He testified that he had first experienced knee tightness and popping in service during airborne school. He indicated that the condition began to worsen in June 1991. He testified that at that time he suffered knee popping, tightness, and swelling, with more pain in the right knee. He also indicated that the symptoms worsened when he trained on inclines. He reported no knee instability and no problems standing too long. He indicated that he was treated with Motrin for the RPPS and tendonitis problems in service. He indicated that since discharge from service, he received private treatment for tendonitis beginning in 1995. He noted that he would forward the treatment records to the hearing officer. He testified that his knee condition was irritated through his work driving a forklift. He complained of swelling, and popping which intensified with movement. He also indicated that there was little irritation unless he increased activity. He noted that the left knee condition was currently worse than the right, but that the right was getting worse. He testified that he experienced knee swelling 15 times monthly. He indicated that when his knees swelled, he rested them and occasionally took pain relievers. He noted that he could squat but would experience pain squatting down half-way. He also indicated that it bothered his knees to stand or walk, particularly on inclines, slopes and stairs. He testified that he began to feel knee discomfort after walking 100 to 300 yards. He indicated that he occasionally woke up in the middle of the night because of popping and sharp pain. He testified that his private physician diagnosed his condition as bilateral tendonitis and that ibuprofen was prescribed. He noted that he was advised to see an orthopedic physician but that he was not financially able to do so. The veteran stated that his symptoms were significantly worse and had progressively worsened since service. He indicated that he was currently employed as an asbestos layer. His knees reportedly bothered him at work because his employment involved a lot of physical labor. He also noted that he did not work full time due in part to his knee condition. The veteran testified that he walked occasionally and was no longer able to run. He noted that he did not have a daily exercise routine but did exercises that didn't aggravate the knee. During a March 1996 VA orthopedic examination, the examiner who had conducted the 1995 VA examination, was asked to comment on whether the veteran had chondromalacia of the knees. In response, he reported that the veteran's knee joints were completely normal. No problems with walking or squatting were noted. The knees were again found to be stable and the cruciate and collateral ligaments were found to be in tact. McMurray, pivot shift and Lachman signs were negative. The patellar grinding test was negative in each knee joint and no fluid or effusion was noted in either knee joint. Range of motion was found to be from 0 degrees of extension to 150 degrees and no pain was noted with full flexion or extension. During an August 1998 VA orthopedic examination, the veteran indicated that his knee condition "compounded" and became "irritated" while he was service and that the symptoms "gradually escalated" in severity. He reported continued irritation in his knees. He indicated that his knees tended to throb and the degree of discomfort varied from a feeling of being uncomfortable to being very uncomfortable. He noted that he was able to work and that the work could involve heavy bending and lifting. He indicated that he did not participate in any therapeutic measures and occasionally took Motrin. Physical examination revealed no swelling, effusion, increased temperature, or evidence of ligamentous instability (either cruciate or collateral). Clicking was noted with active and passive patellofemoral movement but there was no indication of significant intra-articular or subpatellar crepitation, characteristic of degenerative arthritic or chondromalacia changes. No tenderness, discoloration, or deformity was noted relating to the knees. Full range of motion was noted with complete extension bilaterally and flexion to the right knee to 145 degrees and flexion of the left knee to 150 degrees. Range of motion was noted to be within normal limits. Examination of the knees revealed no significant objective abnormalities. The examiner noted that the veteran's condition had previously been diagnosed as arthralgia, tendonitis, and RPPS, but that these diagnoses referred to the veteran's reported symptomatology but failed to address the absence of pathologic changes. The examiner further noted that it was as likely as not that the veteran's symptoms were related to the same complaints recorded during service. No functional impairment was noted. Some impairment of deep knee bending, stooping, squatting, crawling, running or jumping on the basis of pain, fatigability, and not structural change, was noted. Radiology examination conducted at that time found both knees to be within normal limits. Laws and Regulations The threshold question that must be resolved with regard to the claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107 (a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service or during any applicable presumptive period, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd' per curiam, 78 F.3d 604 (Fed. Cir. 1996). The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303. A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is, however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence may be sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is generally required to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn, 12 Vet. App. at 296. If the veteran fails to submit evidence showing that his claim is well grounded, VA is under no duty to assist him in further development of the claim. See Schroeder v. West, 12 Vet. App. 184 (1999). VA may, however, dependent on the facts of the case, have a duty to notify him of the evidence needed to support his claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). Determinations regarding service connection are to be based on review of the entire evidence of record. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); 38 C.F.R. § 3.303(a). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. Analysis The service medical records contain competent evidence of knee disabilities in service. Accordingly, the second Caluza element for a well-grounded claim has been satisfied. There is also arguably competent nexus evidence, in the form of the opinion of the August 1998, VA examiner that the veteran's current knee symptomatology was more likely than not related to service. The remaining question is whether there is competent evidence of a current disability. The Court has held that pain, without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999); Evans v. West, 12 Vet. App. 22 (1998) (holding that there was no objective evidence of a current disability, where the medical records showed the veteran's complaints of pain, but no underlying pathology was reported) In this case the veteran has undergone several post-service VA examinations of the knees, when it was concluded that there was no underlying knee pathology. The only clear post- service diagnosis consists of arthralgia reported on the 1995 examination. "Arthralgia" refers to "pain in a joint." Brewer v. West, 11 Vet. App. 228, 230 (1998) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 140 (28th ed. 1994)). The finding of pain, without underlying pathology cannot constitute competent evidence of current disability. It might be argued that the report of "question chondromalacia" on the May 1995, X-ray examination constitutes evidence of underlying pathology. In another context the Court has held that statements from doctors which are inconclusive as to the origin of a disease cannot fulfill the nexus requirement to well ground a claim. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). However, use of cautious language does not always express inconclusiveness in a doctor's opinion on etiology, and such language is not always too speculative for purposes of finding a nexus. Cf. Watai v. Brown, 9 Vet. App. 441 (1996). An etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words. Lee v. Brown, 10 Vet. App. 336, 339 (1997) (applying the Tirpak and Watai analysis to a determination as to whether evidence was new and material). The statement on the May 1995 X-ray examination is inconclusive. The examiner who provided the May 1995 examination, as well as the examiner who conducted the August 1998 examination, reviewed the 1995 X-ray report, and concluded that the veteran did not have any underlying pathology. Thus, viewed in its full context the inconclusive findings on the May 1995, X-ray examination cannot be viewed as competent evidence of underlying pathology for purposes of establishing a current disability. In the absence of competent evidence of a current disability, the claim is not well grounded and must be denied. The Court has held that 38 U.S.C.A. § 5103(a) (West 1991) imposes an obligation upon VA to notify an individual of what is necessary to complete the application in the limited circumstances where there is an incomplete application that references other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69, 79-80 (1995). The nature and extent of that obligation depend on the particular circumstances of each case. For instance, in Robinette, VA was on notice of a physician's statement as recounted by a veteran to VA. Id. at 80. In the instant case as was noted above, the veteran indicated the existence of private treatment records relating to a diagnosis and treatment of tendonitis of the knees beginning in 1995. The hearing officer indicated to the veteran that those records were needed, but the veteran did not submit them. This action put the veteran on notice of the need to submit the evidence necessary to make his claim well grounded. Because the veteran's claim is not well grounded, VA is under no further duty with respect to those records. See Robinette, 8 Vet. App. at 79. ORDER The claim of entitlement to service connection for bilateral knee disability is denied. Mark D. Hindin Member, Board of Veterans' Appeals