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