Citation Nr: 1122290 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 04-42 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from February 1960 to June 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional (RO), which in pertinent part determined that new and material evidence had not been submitted to successfully reopen the claim of service connection for multipartite, left patella with osteoarthritis. The Veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge (VLJ) in February 2007. A copy of the transcript is of record. During the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304(c) (2010). In a May 2007 decision, the Board determined that new and material evidence had not been submitted to reopen the claim for service connection for a left knee disorder. The Veteran appealed the Board's May 2007 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated June 2008, the Court granted a Joint Motion for Remand, vacated the May 2007 Board decision, and remanded the case for compliance with the terms of the joint motion. The matter is now before the Board for consideration. In September 2009 and January 2011, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The evidence of record does not show that a multipartite of the left patella was worsened in service by a superimposed disease or injury. 3. A left knee disability, to include multipartite of the left patella and degenerative joint disease, has not been shown to be causally or etiologically related to the Veteran's military service. CONCLUSION OF LAW A left knee disability, to include multipartite of the left patella and degenerative joint disease was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1133, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA 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. The Board finds that the VCAA notice requirements have been satisfied by the July 2002 and December 2009 letters. In the letters, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. In the present appeal, a March 2006 letter to the Veteran included the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. Although this notice was not issued before the rating decision on appeal, the Veteran has not been prejudiced, as the Veteran's pending claim is denied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the Veteran's service treatment records, VA outpatient treatment records from, and private medical records. The Veteran was also afforded a VA examination in connection with his claim. The examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided an opinion with supportive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examination report is adequate. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Decision The Veteran contends that his left knee disability is related to his active military service. At the February 2007 Board hearing, the Veteran explained that he initially injured his left knee in 1961 while playing on a basketball squad in Bunker Hill. After leaving Bunker Hill, he went to England in 1962 and injured his left knee again. The Board notes that in his February 1990 formal application for compensation benefits, the Veteran indicated that he incurred a "[c]racked knee[]cap" while stationed in England. Additionally, in a November 2001 personal statement, he explained that he suffered a left knee injury while playing football for the United States Air Force. The Veteran asserts that service connection is warranted for a left knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection for arthritis may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). However, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted. VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985). The VA General Counsel's opinion indicated that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). Service treatment records beginning in September 1964 reflect treatment for a left knee disorder. Specifically, in September 1964, the Veteran reported to sick call with complaints of left knee pain for the past few days. It was noted that there was no history of recent or old trauma of any significance. Physical examination of the left knee showed patellar crepitation, and x-rays showed an "old non-united fracture of the patella." The following day, an orthopedist reviewed the x-rays and interpreted them as showing no abnormalities of the joint spaces themselves, but a separation of the left patella into several parts. He further added that he was unable to distinguish any degree of certainty of an old fracture from a multipartite formation of the patella, and concluded that his left knee most favors a "congenital variation." Upon separation from service, clinical evaluation of the Veteran's lower extremities was normal as reflected on the May 1972 report of medical examination. However, the examiner noted that the Veteran injured his left knee while playing football in 1965 with no treatment, no complications, nor sequelae thereafter. Post service treatment records reflect complaints and treatment for a left knee disorder. Beginning in April 1990 at a VA examination, the Veteran reported a left knee problem in service. He informed the VA examiner that he incurred a fracture to his left knee cap in service while playing football. Physical examination of the left knee revealed no limitation of motion, muscular atrophy, or swelling of any joint. There were noted subjective complaints of pain in the left knee joint on marked flexion. The VA examiner diagnosed the Veteran with a history of a left knee injury, mildly symptomatic. In November 2001, the Veteran was seen by a private physician with complaints of continuous pain in his left knee, aggravated by any type of physical activity. According to the November 2001 private consultation report, the Veteran stated that he was treated for left knee problems in service beginning in 1964, and has had problems since that time. After physical examination and x-ray testing, the private physician diagnosed him with left knee severe degeneration and osteoarthritis. The physician stated that his arthritis is so severe and advanced that he will most likely need total knee replacement. The Veteran returned to the private physician for an initial evaluation in January 2007. Again, he complained of chronic and intermittent pain in the left knee, with problems ambulating, extended walking, and decreased range of motion. The Veteran referred to injuring his left knee in service and was informed that he had some osteoarthritis that may have been attributed to his original in-service injury in 1962. Upon physical examination and x-ray testing, the private physician diagnosed the Veteran with left knee pain and arthritis. VA outpatient treatment records show complaints of chronic left knee pain. X-ray testing in October 2002 showed severe degenerative changes of the left knee with questionable suprapatellar joint effusion. See the October 2002 VA outpatient treatment report. The Board notes that not one of the treatment records or the VA examination mentioned above etiologically relates the Veteran's left knee disability, to service or any event of service. As previously noted, following separation from active service, the first documented treatment for a left knee disorder was seen in 1990, several years following separation from active service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current symptomatology and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, it is acknowledged that the Veteran injured his left knee during service and has had endured left knee problems since being discharged from service. Thus, his statements can be construed as alleging a continuity of since his military service. However, despite such contentions, the absence of complaints or treatment for several years following military discharge is found to factor against his current recollection as to symptoms experienced in the distant past. Therefore, continuity has not here been established, either through the competent evidence or through his statements. Moreover, no competent evidence of record finds that the Veteran's claimed left knee disability is causally related to active service. In fact, a VA examiner in February 2011 reached the opposite conclusion. According to the VA examination report, the Veteran explained that he has had some left knee problems early in service and in 1964, he was diagnosed with a bipartite patella. He stated that he incurred no further problems with his left knee until 1990, when he developed acute pain while playing basketball. He was told that he had "no cartilage" in his left knee. Since being discharged from service, the Veteran informed the examiner that up until 1990, he ran approximately 15 miles per week and worked for 10 years as a mail carrier and as a supervisor for the United States Post Office. After physical examination of the Veteran, the VA examiner diagnosed him with multipartite of the left knee and severe degenerative joint disease of the left knee. The examiner concluded that the Veteran's multipartite of the left patella is a congenital defect. As previously mentioned, the Board notes that congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). However, if during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted. VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01- 85 (March 5, 1985). Accordingly, the question is whether the Veteran's multipartite of the left patella was subjected to a superimposed injury or disease during service. The VA examiner opined that there was no evidence of a superimposed disease or injury in connection to the congenital defect. The examiner noted that the Veteran admitted during the examination that he had no problems with his left knee from 1964 to 1990. Furthermore, the Board notes that there is no indication of a superimposed disease or injury in the service treatment records. As mentioned above, an orthopedic determined in September 1964 that his left knee disability favored a "congenital variation[;]" however, at separation, clinical evaluation of the Veteran's left knee was reported as being normal. Although the Veteran may have complained and/or reported having left knee pain in service at the time of his May 1972 separation examination, it was specifically noted that there were no complications, sequelae, or treatment related to a left knee injury. Thus, as there is no evidence of a superimposed disease or injury on the congenital multipartite of the left patella, service connection cannot be granted. With regards to the diagnosis of severe degenerative joint disease of the left knee, the VA examiner opined that it is "less likely as not" caused by or a result of the Veteran's military service including the in-service football injury. The VA examiner explained that there is no evidence of a chronic left knee problem during service or for 18 years following separation from service. He further added that his degenerative joint disease of the left knee is related to his intense physical activity over the years which have included sports, 15 miles of running per week, and a history of working as a mail carrier for 10 years. The Board finds the February 2011 VA examination report to be of greater probative value. There is no probative medical evidence suggesting a link between the Veteran's period of service and his left knee disability. Given the service treatment records, which are absent of any complaints relating to chronic left knee disability, the absence of complaint or treatment until several years after service, and the absence of any medical evidence relating the Veteran's symptoms to service, the Board finds that the evidence weighs against the Veteran's claim. The Board recognizes the sincerity of the arguments advanced by the Veteran and his sister that his left knee disability is related to his military service. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, a left knee disability requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Neither the Veteran nor his sister has any specialized training in this regard. Thus, the Board rejects their assertions claiming a nexus to service. In conclusion, the competent evidence does not reveal a nexus to any left knee disability occurring in service. The competent evidence does not indicate that the congenital multipartite of the left patella was subjected to a superimposed disease or injury during service. Further, without evidence of a chronic left knee disability in service, degenerative joint disease (arthritis) within the first post-service year and with no evidence of a nexus between a left knee disability and service, service connection for such disability is not warranted. Although the Veteran might sincerely believe that his left knee disability is related to service, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for a left knee disability, and the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ ROBERT O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs