Citation Nr: 0813780 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-06 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty from August 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in December 2007. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. A chronic disorder of the right knee was not present in service or manifested until years following the veteran's separation from active duty, and the veteran's current right knee disability is not etiologically related to service. 2. A chronic disorder of the left knee was not present in service or manifested until years following the veteran's separation from active duty, and the veteran's current left knee disability is not etiologically related to service. CONCLUSIONS OF LAW 1. Right knee disability was not incurred in or aggravated by active service, and the incurrence or aggravation of arthritis of the right knee during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Left knee disability was not incurred in or aggravated by active service, and the incurrence or aggravation of arthritis of the right knee during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for a right and left knee disabilities. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. 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. 2007), 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. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he submit any pertinent evidence in his possession, by letter mailed in March 2005, prior to its initial adjudication of the claims. Although he was not provided notice with respect to the effective-date or disability-element of the claims until August 2006, after the initial adjudication of the claims, the Board finds that there is no prejudice to the appellant 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 either of the claimed disabilities. Consequently, no disability rating or effective date will be assigned, so the failure to provide earlier notice with respect to those elements of the claims is no more than harmless error. The Board also notes that the veteran has been afforded an appropriate VA examination and service medical records and pertinent VA and private medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate either claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without 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 present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served continuously for 90 days or more during a period of war and arthritis becomes manifest to a degree of 10 percent within one year from 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. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Service medical records reflect that in January 1966 the veteran was diagnosed with lateral band syndrome of the right knee. The veteran's examination for discharge in April 1967 revealed that his lower extremities were normal. Thus, service medical records do not establish the presence of a chronic right or left knee disorder. The earliest post-service medical evidence of any left knee disability consists of private treatment records dated in 2001 in which the veteran was diagnosed with a sprain of the left knee and leg. It is particularly worth noting that this treatment record reflects that the veteran reported a history of pain in his left knee for four weeks which he stated was worse after playing on a new golf course. The first post- service medical evidence of a right knee disability consists of a March 2002 operative report in which the veteran had right knee arthroscopy with partial medical meniscectomy. These records include no reference to any service trauma or to the presence of any pertinent symptoms during the veteran's period of active duty. Additional evidence shows that there are conflicting medical opinions of record with regard to the matter of whether the veteran's knee disabilities are related to service. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In December 2005 the veteran was provided a VA examination to ascertain the nature and etiology of his knee disabilities. Following review of the veteran's medical chart and examination of the veteran, the examiner opined that the severe osteoarthritis of the veteran's knees was not caused by or a result of an injury pattern while in the service, but more likely a result of a secondary aging process and obesity. The examiner further stated that the veteran did not have a significant recurrent report to sick call for either knee while in the service and had a significant silent interval for treatment in his medical records for both knees and it was felt that this was a normal progressive aging process and subsequently compounded by the fact that the veteran weighed 270 pounds. He further stated that each knee was an isolated incident of degenerative causes and that the left knee is neither adjunct nor aggravated by the right knee and vice versa. In a December 2007 VA progress note, a Nurse Practitioner (NP) reported that the veteran was her patient and had a current diagnosis of severe bilateral degenerative joint disease involving both knees. She noted that during the veteran's military training he attended jump school and she opined that it was feasible that the veteran's arthritis could be related to trauma to the knees as a result of jump school training activities. The Board is of the opinion that the unfavorable opinion of the December 2005 VA examiner is the most probative evidence with respect to the etiology of the veteran's knee disabilities. In this regard, the Board notes that the VA examiner certainly has more expertise in the etiology of orthopedic disorders than the Nurse Practioner as the VA examiner is a Doctor of Osteopathy. In addition, the Board has found the opinion of the VA examiner to be properly supported and consistent with the evidence of record. The opinion of the Nurse Practioner has limited probative value because it is couched in speculative terms. An examiner's opinion that a current disorder "could be" related, or that there "may be" some relationship, makes the opinion of the examiner too speculative in nature to be probative. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). The Board has considered the veteran's statements and hearing testimony as well. In fact, the Board has found the veteran to be credible. In this regard, the Board notes that the veteran testified at the December 2007 hearing before the undersigned that his in-service knee pain resolved prior to his discharge from service and that he did not have any post- service knee problem until approximately 30 years after his discharge from service. This testimony is consistent with the Board's determination herein that a chronic disorder of either knee was not present in service or until years thereafter. With respect to whether the current knee disabilities are related to service, for the reasons discussed above, the Board has concluded that the preponderance of the evidence establishes that they are not. Accordingly, service connection for a right knee disability and left knee disability is not in order. ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs