Citation Nr: 0810963 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-23 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1952 to December 1953 and received a dishonorable discharge; he served from December 1954 to December 1957 with an honorable discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. The evidence of record demonstrates that the veteran's claimed right knee disorder is not a result of any established event, injury, or disease during honorable active service. CONCLUSION OF LAW A right knee disorder was not incurred in or aggravated by honorable active service, nor may service incurrence of arthritis be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in March 2004. That letter notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in August 2006. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. In May 2004, National Personnel Records Center (NPRC), informed VA that the veteran's service records from his period of active duty service were fire-related, presumably destroyed in the 1973 fire at the National Personnel Records Center (NPRC). In such cases, there is a heightened obligation to assist the claimant in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist includes the obligation to search for alternative medical records. See Moore v. Derwinski, 1 Vet. App. 401 (1991). In May 2004, VA notified the veteran that his records were not available, and informed him of ways in which he could assist VA in reconstructing the records. The veteran was informed that he could submit copies of statements from medical personnel who treated him during service; statements from people who served with the veteran who had personal knowledge of his illness or injury; state or local accident and police reports; employment physical examinations; medical evidence from hospitals, clinics, and private physicians; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examination records. The veteran did not respond to the May 2004 correspondence. The Board notes that the veteran has not been afforded a VA examination in connection with his claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In this case, the Board is of the opinion that such an examination is not required. See 38 C.F.R. § 3.159(c)(4)(i). Here, there is no evidence beyond the veteran's own unsupported contentions that he suffered an injury to his right knee during honorable active service. While current VA treatment records include examination findings with a clear statement that the veteran has joint pain, there is no indication that the veteran's reported right knee pain is associated with his honorable active service. The Board finds the available medical evidence is sufficient for an adequate determination. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Law and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Evidence which may be considered in rebuttal of service incurrence of a disease will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary'' will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d)(1) (2007) The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Factual Background and Analysis In this case, the claimant received an undesirable discharge after his first period of service. In a September 1954 decision, a VA adjudicator found that the veteran was discharged because of willful and persistent misconduct and held that he was discharged under dishonorable conditions. For service connection purposes, the term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). As the claimant has been found to have been discharged under dishonorable conditions from his first period of service, the Board cannot consider entitlement to service connection based on events that occurred during the veteran's service from September 1952 to December 1953, as the claimant is not considered to be a veteran for that time period. For the period of the veteran's honorable active service from December 1954 through December 1957, service treatment records only include a December 1957 separation exam. The exam report indicated that the veteran had normal lower extremities. A scar was noted to exist on an unspecified knee. During a VA outpatient visit in November 2000, the veteran stated that he had a laceration of his right knee at age nine. He also reported that he had no injuries or hospitalizations during his military time. A VA treatment note from September 2003 stated by way of history that the veteran had arthritis in his right knee secondary to old trauma. In a March 2004 statement, the veteran said that he injured his right knee in 1956. He reported an accident where he fell off a pole and landed on his knee. He said that his knee was examined at the local hospital, and the knee was wrapped up. He also stated that he had not had any treatment for his knee since he left active duty. He indicated that his knee made a grinding and clicking noise when he walked. In September 2004 the veteran complained of pain in his right knee to a VA physician's assistant. The veteran wrote in a September 2004 letter that while he was working in the line of duty, a moose violently shook the pole he was working on, and he fell approximately 20 feet. He said he landed on his knees. He stated that the incident was not documented in his medical records because he did not complain and did not realize that any further damage had taken place. He said that he began experiencing pain in his right knee approximately 15 years previously. A VA outpatient record from October 2004 indicated that films revealed mild to moderate arthritis in both of the veteran's knees. The veteran reported that his knee pain began 50 years previously. The examiner noted a minimal amount of crepitus when the veteran's knees were extended and flexed repeatedly. A diagnosis of mild to moderate degenerative joint disease, bilateral knees, was given. VA treatment records from 2004 through May 2006 reveal ongoing treatment for right knee pain with no laxitude, instability, or effusion. Based on the evidence of record, the Board finds that the veteran's claimed right knee disorder is not a result of any established event, injury, or disease during honorable active service. The veteran's separation physical is negative for any treatment of a right knee disorder. The first complaints of a right knee disorder apparent in the evidence of record are from 2003-46 years after the veteran left active duty. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Without competent evidence of an in-service disorder or a competent record of continuity of symptomatology exhibited throughout the years after active service, service connection for a right knee disorder cannot be granted on a direct basis. The Board has considered whether service connection for a right knee disorder could be established on a presumptive basis. To establish service connection for arthritis on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, the December 1957 separation physical revealed normal lower extremities. No medical evidence demonstrates that the veteran experienced arthritis in his right knee to a compensable level within a year after his honorable discharge from active duty. Therefore, service connection for a right knee disorder cannot be established on a presumptive basis. The Board observes that the veteran stated in March 2004 and September 2004 that he injured his right knee by falling off a pole during active duty. However, the Board also notes that the veteran told a VA examiner in November 2000 that he had no injuries or hospitalizations during his military time. Due to the inconsistencies in the veteran's statements, the Board finds the veteran's statements regarding the etiology of his claimed right knee disorder to be less persuasive. While the veteran may sincerely believe he has a right knee disorder as a result of service, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to service connection for a right knee disorder is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs