Citation Nr: 1111487 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 07-16 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a right knee injury, to include arthritis. 2. Entitlement to service connection for residuals of a left knee injury, to include arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1981 to March 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In December 2007, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. The case was before the Board in April 2008 and December 2009, when it was remanded for additional development. FINDINGS OF FACT Any knee injury the Veteran sustained in service was acute and resolved without residual disability; a chronic right or left knee disability was not manifested during the Veteran's service; arthritis of a knee was not manifested in his first postservice year; and the preponderance of the evidence is against a finding that any current knee disability is related to the Veteran's service, including as due to injury therein. CONCLUSION OF LAW Service connection for a right or left knee disability is not warranted. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. 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. See 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 of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim. A March 2006 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. March 2006, April 2008, and December 2009 letters informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's available service treatment records (STRs) and pertinent postservice treatment records are associated with his claims file. The available STRs (consisting of records pertaining to treatment the Veteran received for a fall injury in November 1983) are associated with the claims file. Numerous requests for further STRs produced negative responses, in August 2006, February 2007, and September 2009 (also negative as to availability of any service personnel records), as to the availability of pre-1983 STRs, and specifically any pertaining to the alleged injury-causing event. Any such records are presumed irretrievably lost. Therefore, VA has a heightened duty to assist the appellant in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In light of the heightened duty to assist the Board sought a VA examination to secure a medical nexus opinion. Such examination ( in January 2010) was adequate for rating purposes, as the examiner expressed familiarity with the factual evidence of record and conducted a thorough physical examination (with X-rays), which included notation of all clinical findings necessary for a proper determination in the matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has suggested avenues for development of evidence such as German police reports; however, he advised that he does not know sufficient identifying information (date, location e.g.) for VA to pursue such development. He has not identified (adequately for VA to secure) any pertinent evidence that remains outstanding. VA's duty to assist is met. B. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 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 specified period of time (one year for arthritis) following discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The available STRs show that in November 1983 the Veteran slipped on a throw rug and fell backwards, sustaining back injuries. On evaluation the lower extremities were normal, with full range of motion, and no evidence of trauma. He was discharged after several days of hospitalization. The record further shows that he was given a couple of weeks of convalescent leave on discharge. In his February 2006 claim seeking service connection the Veteran reported that in December 1982 or December 1983 he was hit by a German taxicab while on his way to attend a function at Wiesbaden Air Force Base (AFB) in Germany. He indicated he has pain and loss of motion in both knees. In a photocopy of a note on a prescription form dated in February 2006, Dr. C. stated the Veteran was seen for knee pain, and "has osteoarthritis likely due to prior injury in military." In his March 2007 notice of disagreement, the Veteran related he was walking on a crosswalk on the military base when he was hit by a German taxicab and was injured. He stated that he was put on restricted duty for several months following the accident, and on numerous occasions was treated at Wiesbaden AFB for injuries sustained in the accident. He denied any other injuries. In his May 2007 Substantive Appeal, the Veteran again reported he was struck by a taxicab injuring his knees while enroute to a Christmas party at Wiesbaden AFB. At the December 2007 Travel Board hearing, the Veteran testified that his knee injury in service occurred after the November 1983 back injury. He testified variously that he was placed on physical profile for one month after the injury (See p. 11, hearing transcript) and for 6 months after the injury (p. 10). He indicated that he was seen in follow-up for 8 months after the injury (p. 6). He stated that "Red Cross" placed him on leave for convalescence. He also testified that for the first 20 years after service he did not seek treatment for his knees because he "had no issues" with the knees (p.4). He indicated that Dr. C. is his primary provider (for the past 8 years), and that for the first years of treatment with Dr. C. there was no treatment for knee complaints. On January 2010 VA examination, Dr. P.A.S., an orthopedist, indicated he reviewed the Veteran's claims file and that it reflected no knee injuries. Dr. P.A.S. noted the Veteran reported he was hit by a taxicab in Germany in approximately 1983, sustaining knee injuries and that his current complaints included (mostly) retropatellar knee pain, and crepitation. Knee X-rays were normal bilaterally. The diagnosis was bilateral patellofemoral syndrome. The examiner opined: "Having reviewed the record without any documentation of the injuries and also being a remote injury from 27 years ago, it is not likely that his current symptoms are related to that, but rather a natural occurring phenomenon." Given the heightened obligation to consider the benefit of the doubt rule here (as in all cases where a Veteran's service records have been lost or destroyed), and because there is no objective evidence to the contrary (which would challenge the Veteran's credibility in his accounts of being struck by a taxicab during service), the Board finds it reasonable to concede that such event occurred in service. The record shows that the Veteran has bilateral patellofemoral syndrome as such disability was diagnosed on VA examination. Notably, the note by the Veteran's private provider also shows a diagnosis of arthritis. That provider did not describe the clinical/diagnostic study findings that support such diagnosis. Inasmuch as subsequent knee X-rays were normal, i.e., do not show arthritis, the Board finds that such pathology is not shown. Accordingly (and because even if knee arthritis was currently shown there is no evidence that it was manifested to a compensable degree in the first postservice year), there is no basis for applying the chronic disease presumptive provisions afforded under 38 U.S.C.A. §§ 1112, 1137. There is no objective evidence that the Veteran sustained any significant knee injury in the alleged taxicab incident. He has stated variously that following the incident he was on restricted duty/physical profile due to knee injury for 1 and 6 months and that he received follow-up care in service for 8 months (all in sworn testimony at the Travel Board hearing). Because the accounts are both mutually inconsistent, and also inconsistent with other data in the record (6 months or 8 months after the incident would have been beyond his separation from service), the Board finds the Veteran's accounts to be incredible embellishments of what may have occurred. The Board observes that the Veteran's DD Form 214 reflects that he was discharged under an Army regulation governing administrative separation from service upon fulfillment of term of service. To the extent that the Veteran may be alleging the onset of bilateral knee symptoms in service and continuity of such symptomatology ever since, the Board finds that such allegations are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"). His accounts of continuity of symptomatology are self-serving. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). Furthermore, his statements regarding continuity of symptomatology are not credible because they are inconsistent. In his February 2006 claim seeking service connection for residuals of a bilateral knee injury, he stated that he has had pain and loss of motion in both knees since an injury in service. However, in sworn testimony at the December 2007 hearing, the Veteran related that he did not seek treatment for his knees for 20 years after service because he had "no issues" with his knees during such time. He also related that as he got older he started having aches and pain in his knees (See p.4, hearing transcript), and that he did not receive treatment for his knees from Dr. C., (his primary care physician whom he has seen for only the past 8 years) in the first years of treatment by that provider. The earliest postservice medical treatment record showing any complaints pertaining to either knee is dated in 2006. This initial clinical notation of a knee disability is too remote to support a finding of continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving a claim). For the aforementioned reasons, the Veteran's statements as to continuity of symptomatology are considered not credible. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board is not bound to accept uncorroborated account of appellant's medical history but must assess the credibility and weight of the evidence provided by the appellant before rejecting it). The sole remaining way for the Veteran to establish service connection for a disability of either knee is if there is probative evidence that relates such disability to an event or injury in service. The February 2006 note by Dr. C. stating the Veteran has osteoarthritis likely due to prior injury in the military amounts to a mere conclusory statement. It is unaccompanied by any explanation of rationale. Therefore, it is lacking in probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("a mere conclusion by a medical [profession] is insufficient to allow the Board to make an informed decision as to what weight to assign to the [medical professional's] opinion."). In contrast, Dr. P.A.S., the orthopedist who conducted the January 2010 VA examination, provided an opinion that reflects familiarity with the actual medical history of the Veteran's knee disability, and was based on a thorough examination of the Veteran that included diagnostic studies (X-rays) specific for the alleged diagnosis of arthritis. Dr. P.A.S. opined that it was not likely that the Veteran's current knee symptoms are related to an injury in service. He explained the rationale for the opinion with citation to clinical data in the record, and explanation that the remoteness of the injury (approximately 27 years earlier) from the appearance of symptoms weighed against a nexus between the current disability and the Veteran's service/injury therein. He also identified an alternate, more-likely and nonservice-related etiology for the knee disability (i.e., that it was a natural-occurring phenomenon). Nexus between a current (and only recently manifested) disability and a remote injury in service, in the absence of credible lay evidence of continuity of symptoms, is a medical question that requires medical expertise and is not capable of resolution through lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran has not demonstrated that he has any medical expertise. Accordingly, the only probative evidence in this matter is against the Veteran's claim. In light of the foregoing, the preponderance of the evidence is against the Veteran's claim. The benefit of the doubt doctrine does not apply; the claim must be denied. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs