Citation Nr: 1036985 Decision Date: 09/29/10 Archive Date: 10/05/10 DOCKET NO. 08-05 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right wrist disability. 4. Entitlement to service connection for a left wrist disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to January 1983. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded these claims in June 2009 so that additional development of the evidence could be conducted and finds that VA has substantially complied with the June 2009 remand with regard to the issues on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). FINDINGS OF FACT 1. A current disability of the right knee, including degenerative arthritis, is not related to active military service, and arthritis of the right knee did not manifest itself to a compensable degree within one year following separation from active duty. 2. A current disability of the left knee, including degenerative arthritis, is not related to active military service, and arthritis of the left knee did not manifest itself to a compensable degree within one year following separation from active duty. 3. A current disability of the right wrist, including degenerative arthritis, is not related to active military service, and arthritis of the right wrist did not manifest itself to a compensable degree within one year following separation from active duty. 4. A current disability of the left wrist, including degenerative arthritis, is not related to active military service, and arthritis of the left wrist did not manifest itself to a compensable degree within one year following separation from active duty. CONCLUSIONS OF LAW 1. A chronic right knee disorder was not incurred in service, and arthritis of right knee may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 2. A chronic left knee disorder was not incurred in service, and arthritis of left knee may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 3. A chronic right wrist disorder was not incurred in service, and arthritis of right wrist may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 4. A chronic left wrist disorder was not incurred in service, and arthritis of left wrist may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning the appeal of the service connection claims now before the Board, the RO sent the Veteran a letter in January 2007, prior to the initial adjudication of his claims in May 2007, which met the notice requirements for a claim for service connection. Specifically, VA informed him in the letter about the information and evidence necessary to substantiate the claims for service connection including the need for evidence showing the existence of a disability and a connection between his service and that disability on page five of the letter under the caption "What the Evidence Must Show." On pages five and six of the letter, VA informed him "How VA Determines the Disability Rating" and gave him examples of evidence often used in assigning a disability rating. On page six of the letter, VA informed him "How VA Determines the Effective Date" and provided examples of the evidence it looks to establish an effective date. With regard to the information and evidence that VA would seek to provide and the information and evidence he was expected to provide, VA notified the Veteran in the January 2007 letter of what evidence he should provide on pages one and two of the letter under the heading "What Do We Still Need from You?" He was also informed of the evidence that VA would seek to provide on page four of the letter. Accordingly, all notice requirements with regard to a claim for service connection have been met in this case. Finally, the duty to assist the appellant also has been satisfied in this case. Service treatment records and post-service VA medical records are in the claims file and were reviewed by both the RO and the Board in connection with the appellant's claims. Records, pursuant to the Board's June 2009 remand, from the Social Security Administration (SSA) have also been obtained and reviewed. The appellant has not informed VA of any existing medical records which may be helpful in the adjudication of his claims. VA is not on notice of any evidence needed to decide the claim which has not been obtained. The Board acknowledges that the Veteran has not had a VA examination specifically for his current claims seeking service connection for right and left wrist disabilities. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case because the Veteran's service treatment records are absent for evidence of findings related to the Veteran's wrists, and his post-service medical records are absent for evidence of symptomatology related to either disorder until many years after the Veteran's separation from service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). The first medical record on file pertaining to the Veteran's wrists is dated in 2005. In addition, there is no indication that the current disabilities may be related to the Veteran's service. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain a medical examination or medical opinion in order to decide the right and left wrist claims in this case. 38 C.F.R. § 3.159(c)(4)(i); see Duenas, 18 Vet. App. at 517, citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). A VA examination with an opinion was obtained with regard to the claim for service connection for a bilateral knee disorder in May 2007. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and opinion obtained in this case is adequate, as it is predicated on a reading of the service and post-service medical records in the Veteran's claims file. It considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and provided a reason for the opinion stated, considering the Veteran's history and the records reviewed. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. Factual Background In a November 2006 VA Form 21-526, the Veteran sought service connection for both knees and both wrists. He added that, although he had frequent trouble with his knees and wrists while in the military, he never reported it. He also mentioned that he was considered 100 percent disabled by SSA. To this, records obtained from SSA in October 2009 includes a Disability and Transmittal form which shows a primary diagnosis of "Osteoarthrosis [and] Allied Disorders." The Veteran was noted to have been disabled since August 2005. The appellant's active duty service treatment records include a January 1980 enlistment examination report showing that clinical evaluation of the upper and lower extremities was normal. Service treatment records show no complaints or findings relevant to the right knee or the wrists. A March 1980 Troop Medical Clinic treatment record shows that the Veteran complained that his left knee hurt for two days. On physical examination of the left knee, there was no edema or effusion; McMurray's and Drawer signs were negative; and there was good strength and stability and no tenderness noted. The examiner's impression was knee strain. The plan was aspirin ("ASA") and an ace bandage. There were no further complaints regarding the left knee for the remainder of active service. In January 1983, the Veteran declined to be afforded a separation examination. Post-service VA records, dated from 2005 to 2007, include an October 2005 x-ray record which shows bilateral degenerative arthritis of the knees and the wrists. An April 2006 VA rheumatology consult report shows that the Veteran complained of pain in both of his knees as well as in his right wrist. He informed the examiner that he used to work on a river boat as a deck hand and that during this time he used a 16-pound sledge hammer to break concrete. He also gave a history of past injuries to his right wrist as a result of motorcycle accidents. The diagnoses were osteoarthritis of both knees and the right wrist. The examiner indicated that the right wrist osteoarthritis was likely post-traumatic due to sledge hammering. In a May 2007 VA orthopedic examination report, the examiner noted that the Veteran was treated one time during active duty for a strain to the knee and essentially no abnormality was noted on the evaluation at that time. The examiner noted the Veteran's current complaints of knee symptoms, including stiffness, pain, and swelling. No complaints regarding the wrists were noted. Arthritis of the bilateral knees was diagnosed. The examiner commented that the Veteran had developed severe arthritis of the knees essentially equally. The examiner also opined, in noting that the Veteran had one incident of knee strain during his active duty, that it was not likely that the bilateral knee arthritis was secondary to his active service. Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted 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). Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Analysis Right and Left Knee Disorders After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for both a right and a left knee disorder. The service treatment records, while showing that the Veteran was treated on one occasion for left knee strain, do not demonstrate that a chronic left knee disorder was manifested during his military service. In this regard, there were no further complaints regarding the left knee for the remainder of active duty, and, as noted, the Veteran declined to be afforded a separation medical examination. The service treatment records are also completely negative for clinical findings or complaints concerning the Veteran's right knee. Subsequent to service, the Veteran initially sought service connection for his bilateral knee disorder in November 2006. See VA Form 21-526. The only evidence linking the Veteran's current bilateral knee disorder, degenerative arthritis, to his service is his own lay contentions. Specifically, the Veteran contended on his application form that the physical demands in service were significant, and he had trouble with knees but never reported it while in service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder). Moreover, competent medical evidence is not necessarily required in all cases when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77. In this case, although the Veteran may believe that his current arthritis of the knees is due to "trouble" he states that he had with his knees in service, the Board concludes that his own lay statement as to the etiology of the current arthritis is not competent evidence because unlike, for example, varicose veins or a dislocated shoulder, arthritis is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to an injury or disease in military service without medical expertise. Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, in this case, the Veteran's lay statements as to etiology do not constitute competent evidence. No medical evidence has been submitted which indicates a relationship or association between the Veteran's active duty service and his currently-diagnosed right and left knee arthritis. VA did assist the Veteran in this regard by providing an examination and requesting that the examiner render an opinion as to etiology. However, the May 2007 VA examiner, after reviewing the Veteran's claims folder and examining the Veteran, rendered an opinion unfavorable to the claim. Specifically, the examiner noted that it was not likely that the Veteran's bilateral knee arthritis was related to his active service. Concerning this, he specifically considered that the Veteran had been treated on one occasion in service for knee strain. No medical opinion to the contrary is of record. In summary, the record contains no competent evidence linking a current knee disorder to the Veteran's military service. In addition, the current arthritis of the knees was first diagnosed many years after his separation from service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, after considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for a right or left knee disorder because the competent evidence does not reveal a nexus between the Veteran's military service and the current disorder. Absent such a nexus, service connection may not be granted. 38 C.F.R. § 3.303. Further, as arthritis of the knees was first diagnosed many years following the Veteran's service separation, entitlement to service connection on a presumptive basis, pursuant to 38 C.F.R. §§ 3.307, 3.309, may not be granted. Accordingly, the Board concludes that the preponderance of the evidence is against the claims because the record contains no competent evidence of a chronic knee disorder in service or for many years thereafter and no competent evidence that a knee disorder may be associated with his active duty. See Gilbert, 1 Vet. App. at 54. Right and Left Wrist Disorders With regard to the claims for service connection for disorders of the wrists, the Board notes that the service treatment records are devoid of any mention of complaints, symptoms, or diagnoses pertaining to the wrists. As with the claim for service connection for arthritis of the knees, the Veteran indicated on his application that, although he had trouble with his wrists in service, he did not report it. Subsequent to service, the Veteran initially sought service connection for his right and left wrists in November 2006. See VA Form 21-526. Following the Veteran's separation from active service, the first notation of wrist complaints are in October 2005 at which time degenerative arthritis of the wrists was diagnosed. Post-service VA records, dated from 2005 to 2007, include an October 2005 x- ray record which shows bilateral degenerative arthritis of the wrists. An April 2006 VA rheumatology consult report shows that the Veteran complained of pain in his right wrist. He informed the examiner that he used to work on a river boat as a deck hand and that during this time he used a 16-pound sledge hammer to break concrete. He also gave a history of past injuries to his right wrist as a result of motorcycle accidents. The diagnosis was osteoarthritis of the right wrist. The examiner indicated that the right wrist osteoarthritis was likely post-traumatic due to sledge hammering. As was the case with the claim for service connection for bilateral knee arthritis, the only evidence in this case linking the Veteran's current bilateral wrist disorder, degenerative arthritis, to his service is his own lay contentions. Specifically, the Veteran contended on his application form that the physical demands in service were significant, and he had trouble with his wrists while in service but never reported it. As noted above, medical evidence is not necessarily required in all cases when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau, 492 F.3d at 1376-77. Whether lay evidence is competent or sufficient in a particular case is a question of fact for the Board to determine. Id. at 1377. However, as determined above with regard to arthritis of the knees, the Board concludes that the Veteran's own lay statement as to the etiology of the current arthritis is not competent evidence because unlike, for example, varicose veins or a dislocated shoulder, arthritis is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to an injury or disease in military service without medical expertise. Barr, 21 Vet App at 310 (lay testimony is competent to establish the presence of varicose veins); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, in this case, the Veteran's lay statement as to etiology on his application form does not constitute competent evidence that arthritis of the wrists had its onset in service or is related to the "trouble" the Veteran contends he experienced with his wrists in service. Moreover, the Board also notes that the credibility of the Veteran's statement on his application form is weakened by his statements to the examiner at the time of the April 2006 VA rheumatology consult report which shows that the Veteran informed the examiner that he used to work on a river boat as a deck hand and that during this time he used a 16-pound sledge hammer to break concrete and which shows that he also gave a history of past injuries to his right wrist as a result of motorcycle accidents. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."), citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992); see also Burns v. HHS, 3 F.3d 415, 417 (Fed. Cir. 1993) (testimony was impeached by witness' "inconsistent affidavits" and "expressed recognition of the difficulties of remembering specific dates of events that happened . . . long ago"); Mings v. Department of Justice, 813 F.2d 384, 389 (Fed. Cir. 1987) (impeachment by testimony which was inconsistent with prior written statements). Noting this history, the examiner indicated that the right wrist osteoarthritis was likely post- traumatic due to sledge hammering. Nevertheless, because the Board has determined that the Veteran's lay statement on his application about the etiology of arthritis of the wrists is not competent evidence, the Board need not reach the question of the credibility of the Veteran's statement on his application. Rucker, 10 Vet. App.at 74; Layno, 6 Vet. App. at 469; In summary, there is no evidence indicating a relationship or association between the Veteran's active duty service and his currently-diagnosed wrist arthritis. However, noting the Veteran's history regarding his post-service job requiring sledge hammering and injury to the right wrist in motorcycle accidents, the April 2006 VA examiner indicated that the right wrist osteoarthritis was likely post-traumatic due to sledge hammering. Further, as arthritis of the wrists was first diagnosed many years following the Veteran's service separation, entitlement to service connection on a presumptive basis, pursuant to 38 C.F.R. §§ 3.307, 3.309, is clearly not for assignment. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a right and left wrist disorder. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for right and left wrist disorders is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2009). ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to a right wrist disorder is denied. Entitlement to a left wrist disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs