Citation Nr: 0002564 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 92-14 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from April 1973 to April 1977. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from an October 1990 rating decision in which the RO determined that the veteran had not presented new and material evidence to reopen his claims for service connection for right and left knee disorders (bilateral knee disorder). The veteran filed an NOD in August 1991, and the RO issued an SOC that same month. In October 1991, the veteran filed a substantive appeal. The RO issued a Supplemental Statement of the Case (SSOC) in January 1992. In April 1992, the veteran testified before a hearing officer at the VARO in Baltimore. An SSOC was issued in May 1992, noting that the veteran's claims had been reopened and denied. Subsequently, the veteran's appeal came before the Board, which, in a July 1993 decision, remanded the appeal to the RO for additional development. An SSOC was issued by the RO in March 1995. The veteran's appeal was returned to the Board, which, in a November 1995 decision, again remanded the appeal to the RO for additional development. An SSOC was issued by the RO in June 1999. The Board notes, in addition, that the veteran had perfected an appeal with respect to the issue for service connection for asthma. In a May 1999 decision, the RO service connected the veteran for asthma, and awarded a 60 percent disability rating, with an effective date from October 1991. The veteran did not file an appeal with respect to that decision, and therefore no issue as to asthma is currently in appellate status. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. At the time of the veteran's separation medical examination in March 1977, there were no complaints or findings indicative of any knee pain, or of a right or left knee disorder. 3. A treatment record from theVA Medical Center (VAMC) in Loch Haven, dated in March 1978, noted a finding of probable degenerative joint disease of the left knee, although no X-ray of the left knee was taken at that time. 4. On VA examination in June 1996, the veteran was diagnosed with mild bilateral chondromalacia, and the examiner noted that it was not possible to either corroborate or dispute the veteran's contention that his bilateral knee pain had begun in service. 5. An MRI (magnetic resonance imaging) scan of the veteran's knees, in March 1998, revealed arthritic changes bilaterally. 6. The veteran's contention that he suffers from a bilateral knee disorder, and that this disorder had its onset in service, is not supported by any medical evidence that would render the claim for service connection for this disability plausible under the law. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim for service connection for a bilateral knee disorder. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the veteran's service medical records reflects that an enlistment medical examination in April 1973 did not reveal any complaints or clinical findings referable to a bilateral knee disorder. During the course of the veteran's active duty, he was noted to have reported to the Battalion Aid Station in October 1975, complaining of left knee pain, which he indicated had been occurring for two years on and off. On examination, there was no pain with finger pressure, and no apparent swelling of the left knee joint. The treatment plan called for an Ace wrap and heating pad. Later that month, the veteran returned to the Battalion Aid Station, still complaining of left knee pain. He reported that there had been no relief of his left knee pain from using a heating pad or Ace wrap, and that the pain radiated into his thigh. He was noted to have requested further evaluation, although no such evaluation is documented. In March 1977, the veteran underwent a separation medical examination. On clinical evaluation, no complaints, findings, or diagnoses of any knee disorder were reported. Thereafter, in October 1982, the veteran filed a claim seeking service connection for a bilateral knee disorder. In a June 1983 rating decision, the RO denied the claim. In January 1990, the veteran requested that his claim for service connection for a bilateral knee disorder be reopened. He submitted a VA Form 21-4138 (Statement in Support of Claim) to the RO, dated that same month, in which he reported that he had injured his knees in 1973 while in Army jump school. The veteran noted that he had not reported the injury for fear of being set back in his training. He also noted that he had reported to sick call for his knees several times while at Fort Bragg, NC, and also while stationed in Germany, and had been given some type of medical solution to rub on his knees, although he never received a thorough examination. With respect to current complaints, the veteran indicated that there was periodic swelling of his knees, and that, the older he got, the worse his knees became. In an October 1990 rating decision, the RO determined that new and material evidence had not been submitted to reopened the veteran's claim. In August 1991, the RO received Care First HMO medical records, dated from June 1990 to June 1991. Those records noted the veteran's treatment for allergies, prostatitis, and bilateral knee pain. In particular, a treatment record, dated in June 1990, noted the veteran's reported history of injury and pain to his knees in service, as a result of jumping out of planes and playing basketball. The veteran also reported having been in a motor vehicle accident in 1980, in which he hit his right knee against the dashboard. He complained of intermittent pain and swelling of his knees bilaterally, with the right more severe than the left. He was noted to take Naprosyn. On clinical evaluation, the knees were noted not to give way or lock, and there was no swelling or point tenderness. No diagnosis was reported. An additional treatment record, dated in February 1991, reported a diagnosis of chondromalacia patellae of both knees. In October 1991, the RO received medical records from Good Samaritan Hospital, dated in May 1986; and Clinical Associates, dated from August 1989 to August 1991. The records from Good Samaritan Hospital reflected the veteran's having undergone a bilateral testicular biopsy procedure. An August 1990 Clinical Associates treatment report from Barry Vogelstein, M.D., noted findings of mild to moderate arthritic changes in the veteran's knees, with the right knee being worse than the left. Also in October 1991, the RO received VAMC Loch Haven medical records, dated from February 1978 to April 1985. In particular, treatment records, dated in March 1978, noted the veteran's complaints of intermittent swelling of his knees for four years. The veteran was noted to suffer from probable degenerative joint disease of the left knee. No X- ray of the left knee was taken. A treatment record, dated in June 1980, noted the veteran's complaint of a ticking sensation and discomfort in his knees since service. On clinical evaluation, no abnormal findings were reported. The examiner's assessment was knee discomfort of uncertain etiology. In April 1992, the veteran testified before a hearing officer at the VARO in Baltimore. He reported that he had attended jump school while in the military, and had made a number of parachute jumps. The veteran also stated that he had injured his knees following his first jump, and that he had suffered from intermittent pain since that time. He testified that Dr. Vogelstein had opined that the veteran's arthritis in his knees could have been the result of injuries not treated. In addition, the veteran reported that he had been on reserve duty from 1978 to 1982, one weekend each month. He stated that he was not treated for his knee pain, nor had he injured his knees during his time in the reserves. Furthermore, the veteran stated that, while he was stationed in Germany on active duty, he had sought treatment for his knees on several occasions but his medical records did not reflect that. In September 1993, the veteran was medically examined for VA purposes. The claims file was reported as not being available for review. The veteran reported that his knees had been painful since jump school, and had become progressively worse. On clinical evaluation, both knees were normal in appearance, without deformity. There was no swelling, fluid, heat, or erythema. There was mild diffuse tenderness bilaterally, and mild crepitus on extension bilaterally. There was no subluxation, contracture or instability. Range of motion, bilaterally, revealed extension to zero degrees and flexion to 135 degrees. The veteran was noted to arise and stand normally, and his gait was normal. The examiner's diagnosis was chronic sprains of both knees. An associated X-ray of the right knee revealed incomplete fracture or partial healing of the inferior pole of the right patella. There was also noted an area of lucency along the anterior aspect of the distal metaphysis of the right femur. This was noted as of questionable significance, but an erosive process could not be ruled out. The bone and joint structures otherwise were unremarkable, and there was no evidence of soft tissue abnormality. No X- ray finding with respect to the left knee was reported. Thereafter, the RO received a treatment note from Michael Jacobs, M.D., dated in June 1994. Dr. Jacobs noted that the veteran was a truck driver and had pain in both his knees. It was reported that the veteran climbed up and down loading docks and used a clutch when driving his truck. The veteran was also reported to use Naprosyn, but did not find it improved his bilateral knee disorder. On clinical evaluation, both knees had mild to mild plus patellofemoral grinding. There was no rotatory instability or mediolateral crepitus. Radiographic studies were remarkable for some patellofemoral and medial compartment lipping, consistent with mild to mild-plus osteoarthritis. Dr. Jacobs' impression was mild patellofemoral disease, as well as medial compartment osteoarthritis. In April 1995, the RO received treatment reports from Brian Bohner, M.D., dated in July 1994. These records noted the veteran's treatment for asthma. In April 1996, the veteran was examined for VA purposes. He reported his service medical history, and indicated that he was still driving a truck and that his knee pain was still a problem. In particular, the veteran stated that it sometimes felt as if a rubber band was around his knee, and at times he would feel unbalanced. He indicated that he had had to give up a part-time job in a grocery store. On clinical evaluation, the veteran had a normal gait and could squat to only 30 degrees because of pain. When asked about his knee pain, the veteran reported that it centered in his kneecaps. His kneecaps were reported as being slanted laterally. The remainder of the examination was essentially within normal limits. The examiner's diagnosis was laterally slanted knee caps with mild bilateral patellofemoral arthropathy. In June 1996, the veteran again underwent VA medical examination. He reported his medical history with respect to his knees, noting that in recent years he had received cortisone injections to both knees which had provided some relief. He indicated that he had been forced to avoid all strenuous activities because of knee pain. On clinical evaluation, there was, in particular, mild diffuse tenderness and mild crepitus on extension of both knees, with mild decreased flexion, but no swelling, fluid, heat, or erythema. The veteran arose and stood normally, and his gait was normal, but he refused to squat. The examiner's diagnosis was mild bilateral chondromalacia. He further noted that he had reviewed the veteran's recent X-rays and he could find no significant arthritic changes. The examiner also reported that the veteran had claimed that his problems with his knees had begun in jump school, but that it was not possible to corroborate or dispute that contention. In March 1998, the veteran underwent an MRI scan. With respect to his knees bilaterally, there was thinning of the retropatellar cartilage consistent with chondromalacia; no meniscal tear; and the cruciate ligaments, collateral ligaments, and patellar tendon were intact. The MRI scan reported degenerative changes in both the veteran's knees. II. Analysis With regard to the veteran's appeal, the threshold question to be answered is whether he has presented well-grounded claims. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If he has not, the claims must fail and there is no further duty to assist in their development. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (previously known as the Court of Veterans Appeals), which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996). The United States Supreme Court declined to review that case. Epps v. West, 118 S. Ct. 2348 (1998). See also Morton v. West, 12 Vet.App. 477, 480-1 (1999). The Court of Appeals for Veterans Claims has also held that, in order to establish that a claim for service connection is well grounded, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a connection or link) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. See Elkins v. West, 12 Vet.App. 209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). "Although the claim need not be conclusive, the statute [38 U.S.C.A. §5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether it is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of medical diagnosis or causation, however, do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93(1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). To establish a 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. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Under applicable criteria, service connection may be granted for a disability resulting from disease or injury which was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998). A veteran shall be granted service connection for arthritis, although not otherwise established as incurred in service, if the disease is manifested to a compensable degree within one year following service. See 38 C.F.R. §§ 3.307, 3.309 (1999). Following a review of the evidence and applicable regulations, we find that the veteran has not submitted well- grounded claims for service connection for right and left knee disorders. In reaching this conclusion, we note that the veteran's service medical records reflect only two complaints of, and treatment for, left knee pain. No complaints or treatment were reported for right knee pain. During his separation medical examination, there were no complaints or clinical findings with respect to a bilateral knee disorder. The first documented post-service complaint for knee pain was in March 1978, at which time the examiner reported that the veteran suffered from probable degenerative joint disease, i.e., osteoarthritis, of the left knee. However, the examiner did not confirm his or her opinion with X-ray evidence of the disease, and thus no clinical confirmation was ever made. Subsequent medical records noted complaints of bilateral knee pain with effusion, and arthritic changes in the veteran's knees, but none provided a nexus between the veteran's bilateral knee complaints and his active military service. On VA examination in June 1996, the veteran was diagnosed with mild bilateral chondromalacia. The examiner noted that a review of the veteran's recent X-rays did not reveal significant arthritic changes. The examiner also noted that it was not possible to corroborate or dispute the veteran's contention that his bilateral knee disorder had begun in service. We recognize that, in Lee v. Brown, 10 Vet.App. 336 (1997), the Court held that cautious language by a physician does not always express inconclusiveness. There, however, the Court noted that there was another doctor's statement in the record which provided evidentiary support for the otherwise speculative statement in issue. Here, there is no other medical evidence tending to support the possibility that the veteran's bilateral knee disorder was incurred in service. The Board is mindful that the Court of Appeals for Veterans Claims has held that a disorder suffered in service will be determined to be chronic under 38 C.F.R. § 3.303(b) when there is competent medical evidence to establish its chronicity, based upon both its existence in service and its relationship to the same condition after service. Savage v. Gober, 10 Vet.App. 488, 495 (1997). Where the disorder is of a type that requires medical expertise (as opposed to mere lay observation) to demonstrate its existence, such medical evidence must be of record. Id. (citing Epps, Caluza, Grottveit, supra). In this instance, while the veteran's service medical records do not reveal complaints or treatment for a right knee disorder, the veteran was noted to have sought treatment for left knee pain. However, there is no medical opinion of record, or other competent supportive clinical evidence, linking the veteran's current complaints of left knee pain, and the findings of mild bilateral chondromalacia, to active service. Even where chronicity in service or within an applicable presumption period is not established, a claimant can still establish a chronic disorder, also under section 3.303(b), by demonstrating continuity of symptomatology from service until the post-service diagnosis of the condition. Savage, supra, 10 Vet.App. at 496. Here, as noted above, there was only treatment in service for left knee pain. At separation, no complaints or findings for a left knee disorder were reported. Subsequently, the veteran was noted to have complained of left knee pain in 1978 and 1980. The first documented X-ray finding for arthritis of the left knee was not until August 1990, some 13 years following the veteran's separation from service. Additionally, there is not a medical opinion of record linking the veteran's current left knee disorder to his period of active service. See McManaway v. West, 13 Vet.App. 60, 66 (1999), noting that, even where a veteran asserts continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition . . . ." Thus, the veteran cannot, in this case, establish service connection for a left knee disorder through 38 C.F.R. § 3.303(b). Under the circumstances described above, the Board thus concludes that, given the lack of evidence of either a left or right knee disorder at separation; the number of years between service and the first documented post-service X-ray finding of arthritis in the veteran's knees; and the lack of medical nexus evidence linking the veteran's current complaints of bilateral knee pain to active service, the veteran has not satisfied the threshold requirement for a well-grounded claim as set forth by the Court in Caluza, above. See Clyburn v. West, 12 Vet.App. 296, 301 (1999), holding that continued complaints of knee pain after service do not suffice to establish a medical nexus, where the issue at hand is of etiology, and requires medical opinion evidence. Although the veteran is competent, as a layman, to testify to the pain he has experienced since service, he is not competent to testify as to the medical causation or etiology of his current conditions. The veteran has been very specific in asserting that his bilateral knee disorder was incurred while on active service. While the Board does not doubt the sincerity of the veteran's contentions in this regard, and his belief that he suffers from a service-related bilateral knee disorder, our decision must be based on competent medical testimony or documentation. In a claim of service connection, this generally means that medical evidence must establish that a current disability exists, and that the disability is related to a period of active military service. Competent medical evidence has not been presented establishing that the veteran's current bilateral knee disorder is service-related. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau v. Derwinski, Montgomery v. Brown, both supra. In addition, the veteran does not meet the burden of presenting evidence of a well-grounded claim merely by presenting his own testimony, because, as a lay person, he is not competent to offer medical opinions. See, e.g., Voerth v. West, 13 Vet. App. 117, 120 (1999) ("Unsupported by medical evidence, a claimant's personal belief, no matter how sincere, cannot form the basis of a well-grounded claim."); Bostain v. West, 11 Vet.App. 124, 127 (1998), citing Espiritu, supra. See also Carbino v. Gober, 10 Vet.App. 507, 510 (1997); aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999); Routen v. Brown, 10 Vet.App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Under the law, the veteran is free, at any time in the future, to submit new and material evidence to reopen his claim for a bilateral knee disorder, regardless of the fact that he currently is not shown to be suffering from a disability that may be service-connected. Such evidence would need to show, through competent medical evidence, a current disability or disabilities, and that such disability "resulted from a disease or injury which was incurred in or aggravated by service." 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Rabideau, Montgomery, supra. In absence of well-grounded claims, there is no duty to assist the veteran further in their development, and the Board does not have jurisdiction to adjudicate them. Boeck v. Brown, 6 Vet.App. 14 (1993); Grivois v. Brown, 5 Vet.App. 136 (1994). Accordingly, as a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, the claims for service connection for right and left knee disorders must be denied. See Epps v. Gober, supra. ORDER 1. Entitlement to service connection for a right knee disorder is denied. 2. Entitlement to service connection for a left knee disorder is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals