Citation Nr: 1018045 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 03-33 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to service connection for multiple scars, claimed to include those on the forehead, right thumb, right wrist, right lower abdomen, and legs, and as secondary to service- connected right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran served on active duty for training (ACDUTRA) from January 1978 to May 1978, and for approximately two weeks in June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. In February 2005, the veteran appeared at a Board Central Office hearing held before a Veterans Law Judge who has since left the Board. In March 2006 and again in December 2009, the veteran appeared at a Board Central Office hearing held before the undersigned. In a decision dated in July 2006, the Board denied the appeal. The veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2008 joint motion for remand (JMR) to the Court, the parties (the veteran and the VA Secretary) requested that the Board decision be vacated and remanded; an August 2008 Court order granted the joint motion. FINDINGS OF FACT Multiple scars, claimed to include those on the forehead, right thumb, right wrist, right lower abdomen, and legs, are not etiologically related to ACDUTRA service, and are not proximately due to, or the result of, service-connected right knee disability. CONCLUSION OF LAW The criteria for service connection for multiple scars, claimed to include those on the forehead, right thumb, right wrist, right lower abdomen, and legs, are not met. 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131 (West 2002); 38 C.F.R. § 3.6(c), 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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). In a letter dated in August 2002, prior to the initial adjudication of the claim, the RO notified the Veteran of the information necessary to substantiate the service connection claim, and of his and VA's respective obligations for obtaining specified different types of evidence. He was told that the evidence must show a relationship between his current disabilities and an injury, disease or event in military service. He was advised of various types of evidence that could substantiate his service connection claims. He was told that, if he identifies the sources of such evidence, then VA would assist him in obtaining it, but that he ultimately is responsible for substantiating his claim. The initial notification did not include a discussion of the specific information necessary to substantiate a claim for service connection on a secondary basis. However, this information was provided in the statement of the case, and the Veteran's subsequent statements, testimony, and evidence have been responsive to the secondary service connection criteria, thus demonstrating actual knowledge of the criteria. No contentions of prejudice were raised in the JMR. Accordingly, the failure to inform him of the criteria in a formal VCAA letter prior to the initial rating decision is harmless error. Although he was not provided with information regarding ratings and effective dates, as there is no effective date or rating to be assigned as a result of this decision, such deficiency was likewise harmless error. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). No specific argument was made as to a notice defect in connection with the appeal of the vacated Board decision to the Court. Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009). This duty contemplates that VA will help a claimant obtain relevant records, whether or not they are in federal custody, and that VA will provide a medical examination and/or opinion if needed to decide the claim. The claims file includes service medical records, VA examination findings, private and VA clinical records, the veteran's written statements and hearing testimony, and prior claims adjudication history. The record also reflects that VA assisted in obtaining identified private clinical records. Such assistance included a December 2002 letter to Greater Southeast Community Hospital (GSE), for records of the Veteran's treatment in 1995. In January 2003, that facility responded that it does not have custody of the veteran's records, but provided an alternative address for "GSE/DCG [presumably means "DC General Hospital"] Ambulatory Center." VA apparently did not send a follow-up request to the alternative address. The Veteran was informed, however, that VA had not been able to obtain the records, and he was asked to obtain such records. He has not specifically identified their relevance to his current claim. Moreover, no contentions that these records should be obtained were included in the April 2007 Appellant's brief, or in the August 2008 JMR. Based on the foregoing, the Board does not find a remand is warranted to send an inquiry to GSE/DGC Ambulatory Center. A VA examination was provided in May 2005. In connection with the Court's remand, the Board was directed to obtain an additional examination, if it changed its position. The Board has not changed its position, and, as discussed below, there is no credible evidence establishing that an event, injury, or disease occurred in service or during an applicable presumptive period for which the claimant qualifies, or a credible indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service- connected right knee disability; thus, a VA nexus opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Hickson v. Shinseki, No. 07-1311, slip op. at 14 (U.S. Vet. App. Mar. 31, 2010) ("Information that is not credible is not a basis for ordering another medical examination."). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by active military service, which can include periods while performing active duty for training (ACDUTRA). 38 U.S.C.A. §§ 101(22), 106(d), 1110, 1131; 38 C.F.R. § 3.6(c), 3.303. Service connection may also be granted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection is in effect for right knee chondromalacia with torn medial/collateral meniscus, rated as 30 percent disabling effective April 14, 1994, and for arthritis of the right knee, rated as 10 percent disabling effective October 26, 1999. The veteran contends that his presently claimed scars resulted from a fall from a bicycle in June 1992, and that the fall itself was sustained due to his service- connected right knee disability. Pursuant to the August 2008 JMR filed by the parties, the previous Board decision addressing this issue, dated in July 2006, was vacated and remanded for further reasons and bases. In particular, "the parties agree that the 'substantive quality of the conflicting etiology opinions' should have been a secondary concern compared to Appellant's contention of how the accident occurred. It is the rating specialist's and Board's responsibility to determine credibility; the medical opinions of record are only as good as the facts on which they are predicated, especially for the purpose of determining the cause of Appellant's accident." In this regard, subsequent to the prior Board decision, in a number of decisions, the Federal Circuit Court has outlined circumstances in which lay evidence can be competent and sufficient to establish various elements of a claim. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In general, lay evidence is competent when the matter is susceptible to lay observation. Id. The Veteran is competent to describe his bicycle injury. As a separate matter, however, the Board still must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("Credibility is determined by the fact finder."). Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober,229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (2000) (Observing that in case where the claimant was also a physician, and therefore a medical expert, the Board could consider the appellant's own personal interest); citing Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that while interest in the outcome of a proceeding "may affect the credibility of testimony it does not affect competency to testify." (citations omitted). A hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the veteran." Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran has testified at two hearings before the undersigned. Records from Washington Hospital Center (WHC), dated in June 1992, show that on the admission history, it was reported that the Veteran was "bicycling when he hit a pot hole and was thrown face first into the curb." He complained of diffuse facial pain and neck stiffness with tingling in the forearms. It was noted that there were "no other complaints." A past medical history of leg surgery was noted. The initial assessment was facial nose fracture, possible mandible maxilla fracture, awaiting oral surgery consult. The report of the dental consultation noted that the Veteran had hit a pothole and gone over the handlebars. A neurosurgery consult report noted that the Veteran was "reportedly thrown over handle bars of bike." The evaluation included motor testing, which revealed strength to be 5/5 in all extremities, bilaterally, including the muscles of the lower extremities. According to the hospital summary, the Veteran was "bicycling and hit a pot hole. He was thrown face first into the ground. He complained of diffuse facial pain, jaw pain, and neck stiffness. He also had a tingling in the lateral aspect of both of his forearms. He had no other complaints." At his first Board hearing, in February 2005, the Veteran testified that he had been riding a bike, when the right knee just gave way, and he took a literal nosedive, hitting his skull on the pavement, where he lay in a pool of blood. He stated that it was not a pothole that he had hit; it was a gutter [or girder] that went across the road, which he thought might be train tracks. He said the area was pretty much flat. He said: "The knee just gave way. The right knee, the service-connected knee, just gave way. And it was like a-it ballooned. I don't know for what reason. I wasn't putting any additional stress or strain on it. I was going at moderate speed. Weather conditions were fine. I mean., there was nothing out of the ordinary that would have caused to have other than the knee giving out." He said that he took a nosedive to the payment, were he had his skull "emaciated," and the knee hit as well. In the aftermath, it was tender and swollen. He stated that the primary treatment had been for his facial injuries, but he had leg pain, and they immobilized it. He testified that they "put it in traction and it was immobilized for, oh, about a month or two thereafter. And you could see I'm still, you know, on crutches, to this day." He said that he explained to them at the time that that the knee had given way. He testified, "Well, I was asked, they said, well, how did it happen? I said, well, my-you know, my knee gave way. My right knee gave way. Never happened before. And, so, that's what prompted the doctor to immobilize it and splint it." He said he had not ridden a bike since, nor had the knee gone out on him since. He stated that the knee had been swollen and bloody at the time of the accident. He indicated that his foot released from the pedal, causing him to pitch forward, hitting his leg as well as his skull. Up to that point, he had had no significant problems with the knee giving way, and it "blew out" while the riding the bike. He said that his doctor had advised riding a bicycle, saying that it would be good therapeutic exercise. At his March 2006 Board hearing, he testified: "I was riding a bike, moderate speed, and [just before an intersection], there was a rail in the street and my, the bike I was riding, a shaky bike, the front wheel came off and the fork got caught in a, in a girder in the street and as I was about to fall I attempted to have my right leg buffer my fall and it gave way and I then just hit the pavement, did a literal nose dive. My skull was emaciated [sic] on the pavement in a pool of blood." He said that the long and short of it was that "by instinct if there was something like a projectile coming one would raise their arm, so the fall, the closest thing to the ground would have been my leg and my knee to where I fell. But because my knee gave way it didn't buffer the fall and I incurred the [injuries]." He agreed with a proffered summary that when the bike hit the particular place he tried to brace himself with the right leg, and the right knee collapsed causing him to crash to the ground, with the subsequent injures occurring because his right knee had not buffered the fall. At his December 2009 Board hearing, the Veteran testified that he was riding his bike, and at an intersection, "there was a steel girder across the thoroughfare, where the front tire had come onto it and somehow engaged the quick release causing the tire to roll off and the fork of the bike to literally yank my forehead to the ground." He indicated that he favored his right leg because the left knee was one half inch shorter than the right. He said that because "my right knee buckled, it did not buffer the fall." He said that because of the fall, he received facial trauma. "My skull was strewn on the pavement. I - skull was busted." As can be seen, these accounts of the June 1992 injury contain substantial and irreconcilable discrepancies. At the time of the accident itself, it was reported that he struck a pothole and was thrown over the handlebars, landing on his face. Contrary to his 2005 testimony, the hospital record contains no mention of a knee injury, let alone of traction and immobilization for a month. Rather, other than the injuries described in the records, he had "no other complaints." In 2005, he indicated that the accident had occurred because his knee had just given way, for no apparent reason, thus causing the injury. At the 2006 and 2009 hearings, however, he said that the injury had been precipitated when his front tire had fallen off the bicycle, and he had attempted to break the fall with his leg, at which time the knee gave way. This is not compatible with his earlier statement that the knee had given way for no apparent reason. Further, assuming that a head-over-handlebars tumble following the sudden loss of a front tire could be conceivably forestalled by putting your leg down, the Board does not find it credible that if such a spectacular event had occurred, the Veteran would have failed to mention it either in the hospital in June 1992 or at the 2005 hearing. Likewise, there is no basis on which to conclude that the hospital records would have reported a history of his having hit a pothole, if instead the front tire had come off the bicycle, or omitted mention of a knee so damaged that it had to be immobilized and placed in traction. While the 2006 and 2009 hearing testimonies are largely consistent with each other, neither is consistent with either the 2005 hearing testimony or the 1992 hospital report. The Board finds that the inconsistencies are so incongruous as to render the hearing testimony, from all three hearings, as to the June 1992 accident incredible, that is, not credible. The Board specifically finds that the report of the accident as described at the time of the initial hospitalization to be the most probative in the essentials, i.e., that the Veteran, while riding a bicycle, hit a pothole and/or other uneven surface, and was thrown off the bike, landing on his face. In this regard, the history was recorded shortly after the accident, at a time when the recollections would be sharper, and was consistent with the facial, neck and forearm symptoms noted at the time. Additionally, the statements were in a therapeutic context, rather than in connection with a claim for monetary benefits. The Board also finds that the accident was neither caused by his knee giving way, nor preventable but for his knee giving way. The most persuasive reason for this is that the June 1992 hospital records contain no mention of such. In this regard, he does not claim to have had just a slight knee pain, which he might have overlooked at the time; he testified, under oath, (a) that he was asked about what caused the injury and stated it was his right knee and (b) that the right knee was so badly injured it was immobilized and in traction for about a month or two. It is unlikely that either of these events, let alone both, would have been omitted from the hospital records. The Board also finds that the 2005 testimony, in which he claims that his knee blew out, causing the accident, and the 2006 and 2009 testimony, where he claims that a tire fell off, and the knee gave way when he was trying save himself from falling, are incompatible, further augmenting the probative value of the June 1992 hospital record as the most reliable source of what occurred during the accident. In May 2005, a VA medical examiner who had reviewed the veteran's medical history as documented in the claims file said that "[i]t would be speculating to say that his service connection right knee condition was as likely as not . . . that his right knee disorder caused or contributed to the . . . bicycling accident in June 1992 and thus causing his scars and injuries as a result of that bicycle accident." The VA examiner's rationale was that he "did not see any medical records or any other records showing or documenting [the veteran's] right knee condition in the immediate time just prior to his bicycle accident." The examiner further noted that the June 1992 hospital discharge report documents no diagnosis of any right knee condition. Based on those considerations, he ultimately concluded that it was "less likely than not" that the right knee disability was the cause of the bicycling accident. In April 2006, Dr. Weir, a HUH neurologist, wrote: "I have evaluated [the veteran]. He is tender in his [right] knee. He was previously injured in the RLE [right lower extremity]. The +[right lower extremity] would thus be likely to buckle under physical pressure, (The knee did buckle in 1992)." Also in April 2006, Dr. Dennis, a private physician, said, in pertinent part: [The veteran's] right knee gave out (which is service connected injury) resulting in a bicycle accident." In November 2008, a physician with Howard University wrote that the Veteran had a history of multiple injuries sustained June 4, 1992, when his right knee gave out resulting in a bicycle accident. Dr. E. Perry-Dodson wrote, in December 2009, that 5 missing lower teeth concurred in date with a facial trauma as a direct result of his right knee buckling in 1992. If the Veteran's right knee had not buckled, this dental damage would not have taken place. A November 2009 progress note from Dr. Guttenberg, a dentist and oral surgeon, was submitted. This record is a referral for possible tooth replacement the Veteran indicated "I am here because I would like to replace my 5 lower teeth with implants. I lost them due to facial trauma in 1992." This record merely transcribes the Veteran's account of trauma to the face in 1992 without mentioning the bicycle accident or the cause. A December 2009 letter from Dr. Perry-Dodson was submitted at the December 2009 hearing before the undersigned. The letter indicates that the Veteran had five missing lower teeth and that "this facial trauma concurs in date with a facial trauma as a direct result of his right knee buckling in 1992. If [the Veteran's] right knee had not buckled this dental damage would not have taken place." At the hearing, the Veteran specifically identified Dr. Perry-Dodson's medical specialty as "dental." Essentially this letter has no probative value. It is merely the transcription of the Veteran's allegations of the cause of his 1992 bicycle accident by his current dental specialist. There is no indication that this dental specialist has ever examined the Veteran's right knee. As pointed out in the JMR, "the medical opinions of record are only as good as the facts on which they are predicated, especially for the purpose of determining the cause of Appellant's accident." See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (Board is not obliged to accept an opinion based on inaccurate medical history). In this case, as discussed, the Board finds that the Veteran's statements that his right knee condition caused or failed to prevent a bicycle accident in June 1992 are not credible. Therefore, any medical opinion predicated on such a history is of no probative value concerning the issue of the knee as the cause of the June 1992 accident. The VA opinion that it was "less likely than not" that the right knee disability was the cause of the bicycling accident was based on the absence of any records showing the Veteran's right knee condition immediately prior to his bicycle accident, and that the June 1992 hospital discharge report documented no diagnosis of any right knee condition. These, in essence, were matters going to the Veteran's credibility. At this point, it should be mentioned that VA has a long history of avoiding direct attacks on a Veteran's credibility, in recognition of the fact that memories of past events are often erroneous even when sincere. Such delicacy is no longer practicable; indeed, in this case, precluded. Thus, to clarify, the Board finds that the Veteran's statements regarding right knee involvement in the bicycle accident are not credible and that the injury, a lay- observable event, was not caused by the right knee disability, nor did the knee prevent the Veteran from being able to avert the accident. Hence, the condition of the knee immediately prior to the accident is of little probative value, except to the extent that the Veteran felt that the knee was functional enough that he set out in city traffic, per one statement during rush hour, on a bicycle. The private opinions are all based on the assumption that the injury resulted from buckling or giving way of the knee, which the Board does not find credible. Because the Board finds that the evidence that the June 1992 injury resulted from the Veteran's service-connected right knee disability is not credible, an additional medical opinion is not needed. See Hickson v. Shinseki, No. 07-1311, slip op. at 14 (U.S. Vet. App. Mar. 31, 2010) (Information that is not credible is not a basis for ordering another medical examination.). Pursuant to the JMR filed by the parties, the Board was directed to consider the following: * The history taken by the examiner for a September 1996 C&P examination, which noted complaints of right knee buckling and locking; * A July 2000 medical record from the VA Medical Center in Washington, DC, noting that the Veteran sustained an injury when his right knee "gave way"; * An August 1997 supplemental statement of the case stating that the Veteran's knee gives out; and * Sworn statements by the Veteran regarding knee instability and buckling. On the September 1996 VA examination, the Veteran reported a history of in-service injury, and arthroscopic surgery in 1979. He said that his right knee pain had persisted postoperatively, increasing over the years. He said that he could not jump, run, climb stairs, even to walk was painful. He said the right knee "buckles, locks." On examination, he had a normal gait and there was no obvious pain on motion or limitation of motion. There was moderate swelling, but no deformity or instability. There was some right quadriceps muscle atrophy as compared with the left. Because the Board finds that the June 1992 bicycle accident was unrelated to the knee condition, the history of knee buckling and locking on the September 1996 VA examination does not support his claim. Indeed, the fact that he disclosed a history of buckling and locking in the knee in this 1996 record, without mentioning the significant injury in 1992, might well we considered to weigh against the claim, if anything. Moreover, the examination at that time specifically found that there was no instability in the knee, which also does not support his claim of symptoms at the time. Finally, the Veteran testified, in his 2005 Board hearing, that up to the point of the accident, he had had no significant problems with the knee giving way. The July 2000 outpatient treatment record notes a history of an injury to his right knee several years ago. "He has had at least three surgical procedures in the past, the last being March, 2000, here at the Washington VAMC. He continues to have a problem with pain and weakness in his knee. In the immediate postoperative period for his knee, he had another injury when his knee 'gave way.' At that time, he sustained a fracture to his nose, which required reconstruction surgery, which included a bone graft." The examination disclosed that the left leg was shorter than the left, apparently due to the shortening of the femur. At this time, general stability of the knees was intact, and there was atrophy of the left calf in comparison to the right. The left thigh also appeared to be smaller than the right, although this was a very slight difference. The history reported at that time is not supported and/or is contradicted by the other evidence of record. For one thing, there is no evidence he underwent knee surgery in March 2000, as the record seems to suggest. Alternatively, there is no indication that he underwent knee surgery shortly before the June 1992 accident. The Veteran was, however, hospitalized in Howard University Hospital from March 15 - 17, 2000, at which time he underwent surgery to correct nasoseptal deformity with a deviated septum and multiple facial scars, which reportedly had been sustained secondary to a bicycle accident several years ago. The augmentation rhinoplasty required a graft from the right iliac crest. Also in March 2000, a VA orthopedic note dated March 27, 2000, reported chondromalacia patella with secondary osteoarthritis of the knees. The right knee had mild knee effusion, joint line tenderness, and increased laxity on valgus strain, with negative Lachman test. Flexion was up to 100 degrees. This record, dated twelve days after the facial surgery, did not mention the purported give-way injury, recent knee surgery, or the bicycle accident. Other records dated in March and April 2000 do not report recent knee surgery, a give-way injury, or a bicycle accident. A disability examination conducted by R. Grant, M.D., on March 29, 2000, noted bilateral knee osteoarthritis, and left wrist, facial fracture, neck, and mandible conditions. Dr. Grant reported as history, motor vehicle accident and multiple traumas with history of military injury. In April 2000, he was seen in a VA podiatry clinic, complaining of foot pain due to a limb length inequality. At the age of 10, he had been in a car accident, with surgery and casting to the left hip, which caused the leg length discrepancy. On April 28, 2000, a VA joints examination was performed. The Veteran gave a history of chronic right knee pain, with multiple surgeries on the right knee. He said he had constant knee pain. He reported that the right knee locked frequently, gave out quite often, and buckled when walking on level ground. He walked on two crutches with an antalgic gait. Muscle strength was 5/5. Anterior drawer, McMurray, and lateral instability tests were negative. Thus, these records do not tend to corroborate the history as reported in the July 2000 outpatient treatment record. That record seems to suggest that he underwent knee surgery in March 2000; suffered another injury when the knee gave way postoperatively, which resulted in injuries including a nasal fracture, which required reconstructive surgery with a bone graft. Instead, the records show that he underwent reconstructive surgery in March 2000, due to injuries sustained in a remote bicycle injury several years earlier. Significantly, no mention of the knee as a causal factor of the "bicycle accident" was noted, nor did the Veteran mention a bicycle in connection with the give way injury he reported in July 2000. Consequently, the Board finds the July 2000 outpatient treatment record to be an inaccurate history, and of no probative value. The August 1997 supplemental statement of the case remarked that the Veteran's knee gives out is not probative primarily because the Board finds that the bicycle accident in 1992 was not caused by the right knee disability, but by external factors beyond the Veteran's control. Finally, as to sworn statements by the Veteran regarding knee instability and buckling, as discussed above, the Veteran's sworn testimony is inconsistent; for example, he testified in the 2005 hearing that a the knee "blew out," thus causing the accident, while in 2006 and 2009, he testified that the front tire fell off, and in attempting to prevent an accident, he tried to buffer the fall with his right knee, but the knee gave way. As discussed above, the Board does not find either of these scenarios credible. Moreover, actual instability of a knee is a medical finding, not subject to lay observation, unlike subjective complaints of locking, giving way, or buckling. For instance, in July 2000, he reported that the right knee locked frequently, gave out quite often, and buckled when walking on level ground, but tests for instability were negative. Because, however, the Board has determined that the Veteran's statements as to the knee condition causing the accident are not credible, and that even if his knee was symptomatic at the time, the Veteran's testimony as to that as a causal factor in the injury is not credible, it is not necessary to obtain a medical opinion as to the effect, if any, of the negative instability tests on the Veteran's statements of giving way and buckling. Other considerations, viewed in the context of the whole record, tend to make the veteran's contentions less than credible. The scars claim was filed in 2002. There is approximately a 10-year gap between the bicycle accident and the filing of the claim. While the veteran persistently sought service connection for right knee disability since discharge from ACDUTRA before the claim was granted in August 1997, in no hearing transcript, or written statements, or VA clinical or examination reports dated after June 1992, is there documentation of a report of a bicycle accident purportedly due to right knee instability until the 2005 Board hearing. In the original scars service connection claim, the Veteran said the scars had been incurred during service, and been continuously present since service. Subsequently, he stated that the scars resulted from injuries sustained in a fall due his knee giving way, without mentioning any bicycle accident. For instance, in a May 2002 VA outpatient record, he reported that he had had several surgical procedures for his knees, and had had a fall when his leg gave out. At that time, although he requested a bicycle to help with his knees, he did not report a prior bicycle accident, which he now states was caused by his knee disability. At his most recent Board hearing, he also testified that the bicycle riding was prescribed as therapy for his right knee condition. He stated that he was told that bicycle riding was non-impact and would be the better if not best form of exercise so that his right knee, thigh wouldn't totally atrophy. He said it had been continually recommended that he ride a bicycle, up to and including the present. He said that Dr. Mosay had indicated that bike riding was medically necessitated, using that exact phrase. He said that he was still riding his bike. He said that at Strong Memorial Hospital back in 1979, he had arthoscopy to the right knee, and the doctor recommended that when released from the hospital he needed to continue to strengthen his knee because otherwise, it would become unstable and best way to do that is by non-impact bicycle riding. First, there is no medical evidence that bicycle riding, on the street, which, unlike stationary bicycles used for physical therapy, requires the leg for support when not moving, has ever been medically prescribed. From the standpoint of proximate causation, this is different from a general recommendation that bicycle riding is a good non- impact exercise. Dr. Mosay's two statements do not support his assertion; although in one November 2008 statement he did use the phrase "medically necessary," it was to say that traveling to the VA Hospital was a burden for the handicapped Veteran, and it was medically necessary that his therapy be transferred to Walter Reed Hospital, across the street from the Veteran's residence. This is not, by any means, support for his assertion that bicycle riding is medically necessary. Likewise, the Strong Memorial Hospital records do not confirm that such was prescribed. At his 2005 hearing, he said that his doctor had advised riding a bicycle, saying that it would be good therapeutic exercise. Even this is not corroborated. VA treatment records show that in May 2002, he requested a bicycle for his knees, but do not show that he was given one, or that one was medically recommended. Moreover, at his 2005 hearing, he testified that he had not ridden a bike since the 1992 accident, which is inconsistent with his 2009 hearing statement that he is "still" riding a bike (as opposed to "again" riding a bike). At the 2005 hearing, the Board said he needed crutches to ambulate, which is not consistent with the ability to ride a non-stationary bicycle (which requires the leg for support when at a standstill), particularly along city streets or trails. Overall, the Veteran's statements have not demonstrated credibility or consistency, and his statements that on-street bicycle riding was prescribed have not been supported by the evidence claimed to support them. Thus, the Board finds that at the time of his 1992 bicycle accident, the Veteran was not engaged in a medically prescribed activity; hence, the question of proximate causation concerning that matter need not be further investigated. In sum, in reviewing the claims file as a whole, the Veteran's statements in general are riddled with so many contradictions and inconsistencies as to cast overall doubt on the credibility of his statements. Moreover, as to the question of whether the Veteran's right knee condition caused the June 1992 bicycle accident, the Veteran's sworn testimony and statements have been inconsistent, both internally, and with the June 1992 hospital records, to the extent that none of the statements concerning the injury can be accepted as credible, aside from the history reported at the time of the injury, contained in the June 1992 hospital records. As a result, all medical opinions which rely on the history of the knee causing the June 1992 accident are without probative value as to nexus. Regarding his contention that riding a bicycle at that time was a medically prescribed activity, the inconsistencies, as well as the lack of any medical evidence of such a prescription, render his assertion incredible. Similarly, his initial assertion that the scars were incurred during service are not credible in view of his later statements that the scars resulted from the June 1992 accident. Therefore, whether or not the Veteran's right knee could have buckled at the time, the Board finds that there is no credible evidence that the bicycle injury in June 1992 was caused or contributed to by the right knee condition. Because the evidence is not credible, a medical opinion as to which particular scars were due to the June 1992 bicycle accident is not needed. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for multiple scars, claimed to include those on the forehead, right thumb, right wrist, right lower abdomen, and legs, is denied. ____________________________________________ D. HAVELKA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs