Citation Nr: 0811965	
Decision Date: 04/10/08    Archive Date: 04/23/08

DOCKET NO.  02-18 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Entitlement to service connection for a bilateral knee 
disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Daniel Markey, Associate Counsel


INTRODUCTION

The veteran served on active duty from January 1951 to August 
1952.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of an April 2002 rating decision of the Department 
of Veterans' Affairs (VA) Regional Office (RO) in Jackson, 
Mississippi.

In June 2003, the veteran testified at a personal hearing 
before the undersigned Veterans Law Judge.  A copy of the 
transcript of that hearing is of record.

In November 2006, the Board granted the veteran's motion to 
advance the case on the Board's docket.


FINDING OF FACT

The preponderance of the evidence is against a finding that a 
bilateral knee disability was present in service; that any 
current knee disability is related to service; or that 
arthritis of either knee manifested itself to a compensable 
degree within a year following separation from the veteran's 
period of active duty.


CONCLUSION OF LAW

A bilateral knee disability was not incurred or aggravated 
during military service and may not be presumed to have been 
so incurred.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 
5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 
3.307, 3.309 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2005), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.  
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  In addition, VA must also request 
that the veteran provide any evidence in the claimant's 
possession that pertains to the claim.

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time" 
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  The Court further held that VA failed to demonstrate 
that, "lack of such a pre-AOJ-decision notice was not 
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as 
amended by the Veterans Benefits Act of 2002, Pub. L. No. 
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n 
making the determinations under [section 7261(a)], the Court 
shall . . . take due account of the rule of prejudicial 
error")."  Id. at 121.  However, the Court also stated that 
the failure to provide such notice in connection with 
adjudications prior to the enactment of the VCAA was not 
error and that in such cases, the claimant is entitled to 
"VCAA-content complying notice and proper subsequent VA 
process."  Id. at 120.

The timing requirement enunciated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. 
Nicholson, No. 2006-7303 (Fed. Cir. Apr. 5, 2007).

The record reflects that the originating agency provided the 
veteran with the notice required under the VCAA, by letter 
mailed in October 2001, prior to its initial adjudication of 
this claim.  Additional notice was sent to the veteran in 
February 2004 and April 2005.  Following the provision of the 
required notice and the completion of all indicated 
development of the record, including in response to Board 
Remands in April 2004, December 2006, and August 2007, the RO 
readjudicated the veteran's claim in November 2007.  There is 
no indication or reason to believe that the ultimate decision 
of the RO on the merits of this claim would have been 
different had VCAA notice been provided before the initial 
adjudication of the claim.

Although the originating agency did not specifically request 
the veteran to submit all pertinent evidence in his 
possession, it did inform him of the evidence that would be 
pertinent and request him to submit such evidence or provide 
VA with the information and any authorization necessary for 
VA to obtain the evidence on the his behalf.  Therefore, the 
Board believes that the veteran was on notice of the fact 
that he should submit any pertinent evidence in his 
possession.

Although the veteran was not provided notice of the type of 
evidence necessary to establish a disability rating or 
effective date for the disability for which service 
connection is sought, such notice was provided in 
correspondence dated March 2007.  Regardless, the Board finds 
that there is no prejudice to him in proceeding with the 
issuance of a final decision.  See Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993).  As explained below, the Board has 
determined that service connection is not warranted for the 
veteran's bilateral knee disability.  Consequently, no 
disability rating or effective date will be assigned, so the 
failure to provide pre-adjudicative notice with respect to 
those elements of the claim was no more than harmless error.

The Board also notes that the veteran has been afforded 
appropriate VA examinations and available service medical 
records and pertinent VA and private medical records have 
been obtained.  

The Board is aware that, other than the veteran's August 1952 
discharge examination, the RO has been unable to obtain 
service medical records.  August 1979 correspondence from the 
service department indicates that the veteran's records were 
"fire related" (e.g., destroyed in a 1973 fire in St. 
Louis, Missouri).  A second request in September 2001 was 
also returned as "fire related."

The veteran and his representative indicated their awareness 
of the loss of the veteran's records in his June 2003 hearing 
before the Board.  Still, as of this date, no further records 
of in-service treatment or supporting lay evidence has been 
submitted by the veteran.  The veteran has, however, 
submitted one service medical record pertaining to a February 
1952 shoe fitting, and provided the VA with the means of 
obtaining other post service private medical records.

Given the efforts of the RO, and the absence of additional 
information or documentation from the veteran, the Board is 
fully satisfied that all necessary efforts have been made to 
obtain service medical records in this case.  See O'Hare v. 
Derwinski, 1 Vet. App. 365, 367 (1991) (VA has a heightened 
obligation to explain findings and carefully consider the 
benefit-of-the-doubt rule where government records are 
presumed destroyed).

Apart from this, neither the veteran nor his representative 
has identified any outstanding evidence, to include medical 
records, that could be obtained to substantiate the claim.  
The Board is also unaware of any such outstanding evidence.

In sum, the Board is satisfied that the RO properly processed 
this claim following the provision of the required notice and 
that any procedural errors in its development and 
consideration of this claim were insignificant and non 
prejudicial to the veteran.  See Bernard, 4 Vet. App. at 394 
(1993).  Accordingly, the Board will address the merits of 
the claim.
General Legal Criteria

Service connection will be granted if it is shown that the 
veteran has a disability resulting from an injury suffered or 
disease contracted in the line of duty, or for aggravation of 
a preexisting injury or disease contracted in the line of 
duty, in active military, naval, or air service.  See 38 
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006).

In order to establish service connection for the claimed 
disorder, there must be medical evidence of a current 
disability; medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).

Moreover, where a veteran served continuously for ninety (90) 
days or more during a period of war, or during peacetime 
service after December 31, 1946, and osteoarthritis becomes 
manifest to a degree of 10 percent within one year of date of 
termination of such 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, 1112, 1113, 1137 (West 2002); 
38 C.F.R. §§ 3.307, 3.309 (2006).

In determining whether service connection is warranted, VA is 
responsible for considering both the positive and negative 
evidence.  If the evidence, as a whole, is supportive or is 
in relative equipoise (i.e., about evenly balanced), then the 
veteran prevails.  Conversely, if the preponderance of the 
evidence is negative, then service connection must be denied.  
See 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990); Alemany v. Brown, 9 Vet App. 518, 519 (1996); 
See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 
(2001) ("[T]he VCAA simply restated what existed in section 
5107 regarding the benefit-of-the-doubt doctrine" and does 
not mandate a discussion of all lay evidence of record.)




Analysis

The veteran contended in his June 2003 hearing that his 
bilateral knee disability is attributable to jumping out of 
vehicles in service.  He testified that he has had knee 
problems since service.  In the post service-period, he 
stated that he had fluid drawn from his left knee in 
approximately 1983 and had serious knee problems in 
approximately 1995 or 1996.  In correspondence received 
October 2001, he stated that doctors told him his knee 
problems were secondary to his prostate cancer medicines.  
Here, nothing on file shows the veteran has the requisite 
knowledge, skill, experience, training, or education to 
render a medical opinion.  See Espiritu v. Derwinski, 2 Vet. 
App. 492, 494 (1992).  Consequently, his contentions cannot 
constitute competent medical evidence.  38 C.F.R. § 
3.159(a)(1).

Turning to the medical evidence, the veteran's separation 
examination notes that he had pes planus and a history of a 
left foot fracture.  This record is negative for a knee 
disability.  The veteran provided a record dated February 
1952 showing he was ordered "Thomas heels" for both shoes.

In the post service period, the first medical evidence of any 
knee disability is a VA nurses note from May 2000 that 
indicated the veteran had a history of degenerative joint 
disease and was complaining of sever pain in his left knee.  
This is 47 years following the veteran's discharge.  Such a 
large span of time with no records of treatment is probative 
evidence against the veteran's claim.  See Mense v. 
Derwinski, 1 Vet. App. 354, 356 (1991) (The normal medical 
findings at the time of separation from service, as well as 
the absence of any medical records of a diagnosis or 
treatment for many years after service is probative evidence 
against the claim.).  Moreover, the lack of evidence prevents 
establishment of the onset of the veteran's disability within 
a year of separation.

In a May 2005 VA examination, the veteran was found to have 
mild degenerative joint disease of the knees.

In an April 2007 VA examination report, the veteran gave a 
history of left knee pain starting in service.  The veteran 
indicated that he may have fallen but could not recall a 
specific injury.  While he reported a bilateral disability, 
most of his complaints and history pertained to the left 
knee.  After review of his claims file and a comprehensive 
physical examination, the examiner diagnosed the veteran with 
osteoarthritis, primarily in the patellofemoral joint spaces 
bilaterally, along with other degenerative changes.  Based on 
this, the examiner opined that it was at least as likely as 
not that the veteran's left knee degenerative joint disease 
resulted from active military service, an incident therein, 
or had it's onset during active service.  The examiner noted 
that the veteran denied pain or other symptoms in the right 
knee.  In support of this opinion, the examiner noted the 
veteran's 56 year history of knee pain.  He noted the fact 
that the veteran denied any pain other than his foot in his 
August 1952 discharge physical, but still found that there 
was at least a 50/50 probability  that the veteran's left 
knee pain had it's onset during military service.

In August 2007, the same VA physician who rendered the April 
2007 opinion again reviewed the veteran's claims file and 
available records before issuing another opinion.  He noted 
the veteran's separation examination and in-service pes 
planus.  He also discussed the veteran's currently diagnosed 
knee disabilities.  At this time, the examiner noted that the 
date of onset of the veteran's disability was 15 to twenty 
years prior to his review.  He noted, however, that even this 
date was speculative without supporting evidence in the 
claims file.  In summary, he opined that it is not as least 
as likely as not that the veteran's bilateral knee disability 
had it's onset during military service, to include being 
related to pes planus or residuals of a left foot fracture.  
In support of this opinion, he noted that the presence of pes 
planus or foot trauma is not accepted as a cause for 
osteoarthritic changes of the knee joints.  He stated that 
osteoarthritis is an inflammation of the joint, with risk 
factors including obesity, repetitive strain, and an age over 
50.  The examiner then cited a medical treatise before noting 
the veteran's advanced age.

The Board observes that there is some inconsistency of record 
regarding the etiology of the veteran's claimed condition.  
The same VA physician initially rendered a favorable opinion 
in April 2007, but then issued an unfavorable opinion in 
August 2007.

In deciding these claims, it is the Board's responsibility to 
weigh the evidence (both favorable and unfavorable) and 
decide where to give credit and where to withhold the same 
and, in so doing, accept certain medical opinions over 
others.  See Schoolman v. West, 12 Vet. App. 307, 310-311 
(1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing 
Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Board is 
also mindful that it cannot make its own independent medical 
determination and there must be plausible reasons for 
favoring one medical opinion over another.  Evans at 31; see 
also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing 
Colvin v. Derwinski, 1 Vet. App. 171 (1991).

Here, there is a legitimate basis for accepting the August 
2007 opinion over the April 2007 opinion by the same 
physician.  While the claims file was reviewed prior to both 
reports, the review of the initial opinion and supporting 
evidence was made by the physician prior to rendering his 
second opinion.  This is of greatest contribution to the 
probative value of the second opinion.  See Prejean v. West, 
13 Vet. App. 444, 448-9 (2000) (discussing access of 
examining physician to the veteran's claims file as key 
factor in evaluating the probative value of a medical 
opinion).  The examiner also noted the dearth of supporting 
evidence pertaining to the veteran's claimed history.  Based 
on actual evidence of record, including all of the veteran's 
prior statements, the examiner noted the earliest onset of a 
knee problem followed service by over thirty years.  He 
specifically opined that the veteran's feet problems did not 
contribute to his knee problems, citing other factors as 
possible contributing causes.  By contrast, the April 2007 
opinion appeared to be based solely on the veteran's history.  
The fact that the veteran's statements concerning the 
etiology of his bilateral knee disability was transcribed by 
health care providers does not turn such statements into 
competent medical evidence.  As the court has noted, 
"[e]vidence which is simply information recorded by a 
medical examiner, unenhanced by any additional medical 
comment by that examiner, does not constitute 'competent 
medical evidence'..."  Leshore v. Brown, 8 Vet. App. 406, 410 
(1995).  Also, the examiner did not appear to address the 
etiology of the veteran's right knee, despite a currently 
diagnosed disability in that joint.  Given the basis of the 
examiner's second August 2007 opinion in both the record and 
his objective clinical evaluation, it should be afforded 
greater probative weight than the April 2007 opinion.  See 
Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Owens v. Brown, 
7 Vet. App. 429 (1995); Swann v. Brown, 5 Vet. App. 229, 233 
(1993).  Thus, the most probative evidence as to the issue of 
causation is against the veteran's claims pertaining to a 
bilateral knee disability.  Accordingly, service connection 
for a bilateral knee disability is not in order.

For these reasons and bases, the claim for service connection 
for a bilateral knee disability must be denied because the 
preponderance of the evidence is unfavorable - in turn 
meaning there is no reasonable doubt to resolve in the 
veteran's favor.  See 38 C.F.R. § 3.102; Alemany v. Brown, 9 
Vet. App. 518, 519 (1996).


ORDER

Service connection for a bilateral knee disability is denied.



____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs