Citation Nr: 0814469 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-31 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1968 to December 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). In November 2007, the case was remanded for further development. FINDING OF FACT A chronic left knee disability was not manifested in service; arthritis of the left knee was not manifested in the veteran's first post-service year; and his current left knee disability is not shown to be related to his active service, to include complaints noted therein. CONCLUSION OF LAW Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Via letters in December 2002 and December 2006 the veteran was notified of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, the assistance that VA would provide to obtain evidence and information in support of his claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The letters advised him that he should submit any medical evidence pertinent to his claim. While he did not receive timely notice regarding disability ratings or effective dates of awards (Dingess v. Nicholson, 19 Vet. App. 473 (2006)), the decision below denies service connection, and neither the rating of a disability nor the effective date of an award is a matter for consideration. Hence, the veteran is not prejudiced by the timing of such notice. The veteran's service medical records (SMRs), pertinent VA and private records, as well as Social Security Administration (SSA) records have been secured. He has not identified any pertinent records that remain outstanding. Pursuant to the Board's November 2007 remand, the veteran was afforded a VA examination in January 2008. VA's duty to assist is met. II. Factual Background, Legal Criteria and Analysis The veteran's SMRs note that on a June 1968 examination he complained that his left knee "gives out occasionally". In November 1968 he was seen for left knee complaints; specifically that his left knee kept giving out on him. He was referred to the orthopedic clinic. X-rays of the left knee were unremarkable. The diagnosis was old healed osteochondritis medial condyle left femur. On December 1975 service separation examination, the veteran reported a history of trick or locked knee. On clinical evaluation, his lower extremities were normal; no pertinent diagnosis was made. Postservice records from April 1999 to April 2007 reflect the veteran has left knee arthritis. A September 2007 left knee MRI found partial medial extrusion of the body of the medial meniscus with tiny horizontal cleavage tear; tricompartment degenerative changes; chondromalacia in the medial and patellofemoral joint compartments; and small knee joint effusion. On January 2008 VA examination, the veteran complained that he was unable to bend well but denied other limitations of motion or other functional impairment. Physical examination revealed normal gait. There was normal range of motion. There was no loss of bone, and no crepitation. There were no clicks or snaps, and no grinding, instability, or patellar or meniscus abnormality. The diagnosis was left knee pain; history of rheumatoid arthritis with chondromalacia of the left knee. The examiner noted that she reviewed the claims file, and opined: "My opinion is that the service did not cause nor was the rheumatoid arthritis and osteoarthritis changes a result of the service. It could have caused some aggravation during basic training as noted in the C- file, [however], the veteran was able to complete his service time and has history of 22 years working . . . until given a medical disability in March 1999". Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a degree of 10 percent within a prescribed period of time (one year for arthritis) following discharge from service. 38 C.F.R. §§ 3.307, 3.309. Service connection may be established for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence 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 (disability). Hickson v. West, 13 Vet. App. 247, 248 (1999). It is not in dispute that the veteran now has a chronic left knee disability. His left knee arthritis is well documented. Likewise, it is not in dispute that he was seen for complaints of left knee pain in service. What he must still show to establish service connection for a left knee disability is that the current disability is related to the complaints in service. The veteran's SMRs reflect that the complaints in service were transitory, and resolved. There was no further follow- up in service, and, although a history of knee problems was noted on service separation examination no abnormality was found or pertinent diagnosis made on clinical evaluation at the time. Consequently, service connection for a left knee disability on the basis that chronic left knee disability became manifest in service, and persisted, is not warranted. Furthermore, as there is no evidence that arthritis of the left knee was manifested in the first postservice year, service connection for such pathology on a presumptive basis (as a chronic disease) is also not warranted. The veteran may still establish service connection for his left knee disability if competent (medical) evidence relates the disability to the injury in service (or otherwise to service). See 38 C.F.R. § 3.303. However, there is no such competent evidence in this case. The only competent (medical) evidence that specifically addresses this matter, the opinion of the January 2008 VA examiner is to the effect that the veteran's current left knee disability is unrelated to the complaints noted in service. Significantly, a lengthy period of time between service and the first postservice clinical notation of the disability for which service connection is sought (here more than 24 years) is, of itself, a factor for consideration against a finding of service connection. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000). As the veteran is a layperson, his own opinion that his left knee disability is related to service is not competent evidence. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The preponderance of the evidence is against the veteran's claim. Accordingly, it must be denied. ORDER Service connection for a left knee disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs