Citation Nr: 1136615 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 07-19 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for lumbar degenerative disk disease, to include as secondary to a service-connected left knee disability. 4. Entitlement to service connection for lumbar degenerative disk disease, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to April 1975. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying reopening of claims for service connection for right knee pain (including as secondary to service-connected left knee disability) and for service connection for lumbar degenerative disk disease (including as secondary to service-connected left knee disability). The RO subsequently reopened the claims and denied them on the merits. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran testified before a Decision Review Officer (DRO) at the RO in August 2009, and he thereafter testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing conducted at the RO in February 2011. Transcripts of both of these hearings are contained in the claims file. The issue of entitlement to service connection for a psychiatric disorder to include mood disorder as secondary to service-connected left knee disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it referred to the AOJ for appropriate action. A review of VA treatment records dated in 2009 reveals diagnoses variously including of mood disorder secondary to chronic pain and depressive disorder not otherwise specified, with ongoing treatment with antidepressant medication. An April 2009 treatment record, which diagnosed mood disorder secondary to chronic pain, noted pain symptoms due to both left knee and low back (with radiculopathy) disabilities. Thus, a claim for secondary service connection for psychiatric disability to include mood disorder is implicated by these recent VA treatment records. The reopened issue of entitlement to service connection for lumbar degenerative disk disease, to include as secondary to a service-connected left knee disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An October 2002 RO decision denied service connection for a right knee disability, and that decision was not appealed. That was the last final decision, up to the present time, denying the Veteran's claim for service connection for a right knee disability. 2. The evidence added to the record since the October 2002 RO decision denying service connection for a right knee disability relates to the basis for the prior denial. 3. An October 2002 RO decision denied service connection for lumbar degenerative disk disease, and that decision was not appealed. That was the last final decision, up to the present time, denying the Veteran's claim for service connection for lumbar degenerative disk disease. 4. The evidence added to the record since the October 2002 RO decision denying service connection for lumbar degenerative disk disease relates to the basis for the prior denial. 5. The Veteran has not had a right knee disability during the pendency of the current claim for service connection for a right knee disability. CONCLUSIONS OF LAW 1. New and material evidence has been received since the last final decision denying service connection for a right knee disability; that claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2011). 2. New and material evidence has been received since the last final decision denying service connection for lumbar degenerative disk disease; that claim is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for a right knee disability, including as secondary to a left knee disability, are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The Board herein grants the Veteran's applications to reopen his claims for service connection for a right knee disability and lumbar degenerative disk disease. The reopened claim for service connection for lumbar degenerative disk disease is the subject of the Remand, below. Hence, further discussion of VCAA's notice and assistance requirements with regard to the applications to reopen is unnecessary. However, because the Board has herein denied service connection for a right knee disability by a decision on the merits, the Board must further address questions of appropriate notice and development assistance as to that claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2010). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has fulfilled the above requirements with regard to the claim for entitlement to service connection for a right knee disability. Between the VCAA notice letters of March 2005 and November 2005, and the additional VCAA notice letter of June 2010, the Veteran was duly informed of the evidence needed to establish entitlement to service connection for a right knee disability, based on direct service connection or secondary service connection including based on aggravation. 38 C.F.R. § 3.303, 3.310. This was followed by the RO's readjudication of the claim in a September 2010 SSOC. These VCAA letters, taken as a whole, duly informed the Veteran of the notice and duty-to-assist provisions of the VCAA, including the respective responsibilities of the Veteran and VA in obtaining additional Federal and non-Federal records. By the June 2010 VCAA letter addressing the right knee disability claim, the Veteran was also afforded Dingess-type notice. To whatever extent such Dingess-type notice may have been deficient in this case, such deficiency would be harmless and moot, because the claims for service connection for a right knee disability herein adjudicated is herein denied. The VCAA letters also requested that the Veteran advise of any VA and private medical sources of evidence pertinent to his claim, and that he provide necessary authorization to obtain those records. They also requested evidence and information about treatment after service, in support of the claim. Based on information provided by the Veteran, VA treatment records were requested, obtained, and associated with the claims file, together with some private records submitted by the Veteran, as well as service treatment records (STRs) and service examination records. There is no indication that pertinent medical records were not appropriately requested, or that records received were not appropriately associated with the claims file. The Veteran was also adequately informed of the importance of obtaining all relevant records, and of his ultimate responsibility to see that records are obtained in furtherance of his claim. In the absence of any report or indication of additional records not yet obtained relevant to the appealed right knee disability claim herein adjudicated, VA need not assist the Veteran in soliciting any additional records and need not seek to obtain any for association with the claims file prior to the Board's adjudication herein of the claim for service connection for a right knee disability. In addition, the Veteran was afforded a November 2009 VA examination with regard to his right knee. During the hearing, the Veteran questioned the adequacy of this examination, primarily due to its brevity. However, for the reasons stated below, the Board finds that the examination and an April 2010 addendum adequately addressed the questions of a current right knee disability and etiology of any such disability, specifically by concluding - based on careful review of the medical evidence and supported by careful and sufficient analysis as documented in the examination report and addendum - that the Veteran did not have a current right knee disability. This medical report and its addendum, taken together, provided an informed opinion based on the record including past treatment records and examinations and tests conducted and the Veteran's self-report of history and symptoms. The November 2009 examiner found that the Veteran's assertions of clinical complaint and subjective clinical responses were inconsistent with objective findings, with objective findings and past clinical and x-ray records leading the examiner to conclude that the Veteran has no current right knee disability. The Board finds that this November 2009 medical examination and its findings and conclusion and analyses, including in the April 2010 addendum, taken together with the balance of the evidence of record, is adequate for the Board's adjudication herein. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examination provided sufficient detail, and supported its conclusion with analyses fully supported by review of the evidence presented, which analyses are readily weighed against contrary evidence. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Further, the evidence so considered by the examination report and addendum was sufficient and encompassed the evidence of record. Id. The Board accordingly concludes that no further examination is required to support the Board's adjudication of the claim for service connection for a right knee disability including as secondary to a left knee disability. 38 C.F.R. § 3.159(c)(4). Any VA development assistance duty under the VCAA to seek to obtain indicated pertinent records has been fulfilled. Neither the Veteran nor his representative has presented any avenues of evidentiary development presenting a reasonable possibility of furthering the claim for service connection for a right knee disability which the RO or Appeals Management Center (AMC) has not pursued. Hence, the case presents no reasonable possibility that additional evidentiary requests would further the claim being decided herein. 38 U.S.C.A. § 5103A (a)(2); 38 C.F.R. § 3.159. Moreover, the Veteran addressed his right knee disability claim by statements and testimony, including at a DRO hearing in August 2009 and at the hearing conducted before the undersigned Acting Veterans Law Judge in February 2011. There has been no expressed indication that the Veteran desires a further opportunity to address his a right knee disability claim adjudicated herein. In addition, during the February 2011 Board hearing, the undersigned informed the Veteran that it was incumbent upon him to submit any potentially relevant evidence in his possession in support of his claims. This action supplemented VA's compliance with the VCAA and, to the extent that 38 C.F.R. § 3.103 (2010) was applicable to Board hearings in February 2011, complied with this regulation. See 76 Fed. Reg. 52572 (Aug. 23, 2011) (clarifying that 38 C.F.R. § 3.103 does not apply to Board hearings). In sum, in this case, with regard to the claim for entitlement to service connection for a right knee disability, the Board finds that VA has complied with the VCAA's notification and assistance requirements, and any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the service connection claims at issue on appeal. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The applications to reopen and claim for entitlement to service connection for a right knee disability are thus ready to be considered on the merits. II. General Laws and Regulations Governing Claims for Service Connection Including On Direct and Secondary Bases Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2011). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 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). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may be granted, on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2010). 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability 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 profession." Jandreau v. Nicholson, supra; see also Buchanan v. Nicholson, supra ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. III. Reopening of Claims for Service Connection For a Right Knee Disability and Lumbar Degenerative Disk Disease The Veteran was last previously denied service connection for a right knee disability and lumbar degenerative disk disease, both including as secondary to service-connected left knee disability, by decisions within an October 2002 RO rating action. The Veteran did not submit a notice of disagreement with those October 2002 decisions within the one-year period allowed for submission of a notice of disagreement to initiate an appeal of those decisions. He also did not within that one year period submit any additional evidence, and neither was any additional evidence received pertaining to those issues, within that one-year period, so as to be considered as having been filed in connection with those claims, to allow for continuation or non-finality of those claims. 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007); King v. Shinseki, 23 Vet. App. 464, 466-67 (2010); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Relevant official service department records not previously of record have also not been received since those October 2002 decisions so as to render those decisions non-final. 38 C.F.R. § 3.156(c) (2010). Accordingly, those October 2002 decisions became final as to the claims for service connection for a right knee disability and lumbar degenerative disk disease, both including as secondary to service-connected left knee disability. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.302, 20.1103 (2010). Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See Kightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis (either on the merits of the case, or based on no new and material evidence having been presented to reopen the claim) will be evaluated, in the context of the entire body of evidence of record, to ascertain whether reopening is warranted. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence to reopen a claim means evidence newly of record, not previously submitted to agency decision makers. Material evidence to reopen a claim means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence to reopen a claim can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Elkins v. West, 12 Vet. App. 209 (1999), the Court held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In determining whether the evidence is new and material, the credibility of the newly presented evidence is presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to consider all of the evidence received since the last disallowance. Hickson v. West, 12 Vet. App. 247, 251 (1999). The Board notes that, in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court found that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. Evidence received since those last final decisions in October 2002 has included VA treatment records, submitted statements and submitted private medical evidence, testimony by the Veteran addressing these claims for service connection, as well as results of a VA examination for compensation purposes in November 2009 and an April 2010 addendum to that November 2009 report and opinion. In testimony the Veteran provided before the undersigned in February 2011, the Veteran asserted that he was treated in service for injury aboard ship to both knees and his low back when a mooring line struck both his knees and threw him into the air and onto his back on the steel deck of the ship. He added that from the time of that injury up to the present he had ongoing pain in both legs. He testified that he was treated in service with fluid drawn from both knees and both knees being bandaged for quite some time after the injury. Additionally, he elaborated that when he was discharged from service in April 1975 both his knees were still bandaged. He also then asserted, in effect, that he had back pain as well as knee pain when separated from service, and that he then sought help from VA but was denied. He averred that his treatments in service for his right knee and back were not recorded. At his prior hearing in August 2009 he testified that when he hurt his back on the job in 2001 this was a re-injury of the back, following initial injury in service when he hit the steel deck upon being struck by the mooring line. Thus, the Veteran has provided new, pertinent evidence in the form of testimony to the effect that he had disability in the right knee for which he received considerable undocumented treatment in service and that was ongoing and symptomatic from service, and that he had injury to the back in service from striking the steel deck of the ship, with that injury in effect latent for some time after service until he suffered re-injury to the low back in 2001. These are new assertions concerning incurrence of disability in service. As already noted, this new evidence is to be presumed credible for purposes of reopening the claim. Kutscherousky. Thus, only for purposes of reopening the Veteran's claims, the Board effectively must presume the truthfulness of the Veteran's assertions of undocumented injury and disability of the right knee and back and treatment for these in service, with ongoing or persistent or latent disability in these parts persisting until the present time. The Veteran is competent to address these historical events as he perceived them and to address his symptoms from that time up to the present. Jandreau. These statements are also not inherently false or untrue. See Duran v. Brown, 7 Vet. App. 216, 220 (1994) (presumption of credibility of new evidence for purposes of reopening previously denied claims unless the new evidence is inherently false or untrue). Based on this testimony and presuming its truthfulness for purposes of reopening the Veteran's claims, the Board finds that this new testimony constitutes new evidence that is neither cumulative nor redundant of the evidence of record at the time of the last prior final denials in October 2002 of the claims sought to be reopened, and that raises a reasonable possibility of substantiating the claims. Accordingly, reopening of the claims for service connection for a right knee disability and lumbar degenerative disk disease is warranted. 38 C.F.R. § 3.156(a). IV. Claim for Service Connection for a Right Knee Disability - Merits-Based Adjudication The Board has reopened the claim for entitlement to service connection for right knee disability, as did the RO. As the RO considered the underlying claim on the merits, there is no prejudice in the Board doing so as well. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Two treatment records on a single day in November 1971 inform of the Veteran being hit in both legs playing football, and complaining of feeling tightness in his muscles, pain in his anterior thighs bilaterally, and pain in his sternum. However, there is no follow-up record suggesting ongoing disability resulting from this injury, and no indication specifically of injury to the right knee. A January 1975 treatment record informs of the Veteran being struck by a rope in the left knee, with slight swelling observed. The Veteran then also complained of pain in the right patella, though any blow or injury to the right patella was not noted. A more detailed note on the same page explains how the injury occurred: [The patient] was working as a line handler and there was a heavy strain taken on the line. He was trying to play out the line on the [illegible], the line surged and struck the patient at the left knee area. This record makes no additional mention of the right knee, apparently with neither examination or treatment for the right knee. A follow up consultation the same day in January 1975 reports of the Veteran being struck in the left knee area by a mooring line, with resulting extreme pain with movement of the leg. X-rays showed no fracture, and a contusion of the left leg was diagnosed. This record did not address the right knee. Further records of multiple treatments associated with the left knee injury span from January 1975 through February 1975, with noted bandaging or wrapping of the left knee. These additional treatment records contain no notation of any additional complaint about the right knee, and no record of medical findings, diagnosis, or treatment for the right knee. The Veteran's service examination records including in August 1975 and August 1976 provide no findings of any disability of the right knee. As discussed supra, the Veteran has provided testimony to the effect that when in service he was struck in the left knee by a mooring line he was also then struck in the right knee, and the strike was of such force that he was thrown in the air and landed on his back. His testimony was additionally to the effect that both knees were treated in service, with draining of the knees and bandaging, with the bandages still present when he was separated from service. The Veteran has further asserted that his right knee disability with associated right knee pain has been persistent from that time up to the present. The Board must first note that the Veteran is competent to address his history of injury, of treatment as he experienced it, and of symptoms of disability. Jandreau. The Board must now weigh the Veteran's narrative of past injury and difficulty with the right knee against the other evidence of record. Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336 (lay testimony competent to describe observations, but must be weighed against the other evidence of record). For the following reasons, the Board finds that the Veteran's assertions of past injury and treatment in service for his right knee are not credible because contrary documentation within service treatment records extinguish any plausibility of the Veteran's narrative. This is not a case where there are no service medical records and the question becomes whether to believe a narrative in the absence of corroborating evidence. Rather, the mooring line injury and subsequent treatment are well-documented within the service treatment records. While these records note the Veteran's initial complaint of right patella pain, they document only findings of disability and treatment of the left knee. If the Veteran's right knee were also treated when the left knee received treatment in service, there is no discernable explanation why treatment for the right knee would be absent from multiple records including those where treatment for the left knee is amply documented. The pertinent treatment records are not scant, but rather are quite detailed, informing of how the mooring line struck the left knee, what injury resulted, and what treatment was administered. It is not plausible that these detailed records of injury and treatment would simply leave out findings of injury and treatment referable to the right knee while carefully noting findings of injury and treatment for the left knee. Thus, the Board finds that the contemporaneous, detailed in-service treatment records are entitled to greater weight than the Veteran's own statements many years later made in the context of a claim for compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Based on the above analysis, there is no evidence of a significant or chronic injury to the right knee in service or of chronic disability of the right knee beginning in service. Only the single notation of a complaint of right patella pain following the mooring line injury in January 1975 serves to support any difficulty with the right knee in service, and the in absence of any objective medical findings of right knee disability or of treatment or follow-up for any right knee injury or disability in service, the Board finds that the evidence preponderates against any in-service right knee disability other than the documented pain in the right patella. While VA treatment records in recent years following the Veteran's submissions of his claim have documented some complaints by the Veteran of right knee pain, treatment records have not documented any findings or diagnosis or treatment of right knee injury or disability. They have, however, documented degenerative disk disease of the lumbar spine at L4-L5 with right lower extremity radiculopathy. Upon VA examination for compensation purposes in September 2002, the Veteran asserted injury to both knees and the low back in service. He then complained that he had current increased pain in the knees with prolonged weight bearing and with climbing in and out of his truck over the course of his workday, as well as upon driving for extended periods. However, the examiner noted that the Veteran's complaint of pain referable to the right knee appeared to be in the nature of radicular pain from the back. This was affirmed with range of motion testing of the right knee which produced motion from zero degrees extension to 125 degrees flexion but elicited a complaint of resulting pain in the lower back with movement of the leg, rather than pain in the knee. The examiner further noted that there was no redness, heat, or swelling in the knee, with only slight patellofemoral tenderness reported (which is necessarily subjective), and no indentified ligamentous instability. The examiner assessed recurrent right knee pain by the Veteran's self-reported history, with minimal physical findings. The examiner did not have access to the claims file or medical records for review, and accordingly stated that it would be speculative to address whether the Veteran had a disability of the right knee related to service or to a left knee disability. Because this September 2002 examination was not informed by review of the claims file or other medical records, and found only the Veteran's complaints and tenderness to palpation - a somewhat subjective test relying on response of the patient - to support the presence of disability in the right knee, the Board finds that the this examination ultimately provides little support for the presence of a right knee disability. The Court has held that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because the examiner in September 2002 had little basis to discern the credibility of the Veteran's self-report of past medical history and current symptoms, the examiner could not then provide a reliably probative opinion as to the presence or absence of asserted disability of the right knee. Upon VA x-ray examination of the knees in December 2005, the scans were found normal, without evidence of degenerative conditions or fractures or subluxations. MRIs of the lumbar spine in 2002, December 2005, and February 2006 produced findings of degenerative disc disease at L3-L4 and L4-L5 with a vacuum joint phenomenon noted at L4-L5. While VA treatment records in recent years have including complaints including of pain in the right leg or right knee, objective findings of right knee disability are absent from these records. Upon a VA examination for compensation purposes in November 2009, the Veteran provided his narrative of injury in service aboard ship with a mooring line snapping and striking him in both knees and knocking him on his back. His self-reported history included draining of both knees in service after the injury, but with only his left knee addressed by VA after service. At the November 2009 examination the Veteran complained of left and right knee pain, lumbar pain, and radicular pain; he asserted that his left knee pain caused him to shift his weight bearing, resulting in right knee pain as well as lumbar and radicular pain. The radicular pain reportedly extended from the right lumbar region to the right lateral thigh and the right lateral knee area. The November 2009 VA examiner carefully reviewed the evidentiary record within the claims file, including the in-service record as detailed above. The examiner concluded that there was "no indication that the right patella was an ongoing problem." The examiner further noted that post-service records including x-rays and MRIs were revealing of objective evidence to support lumbar degenerative disk disease with radiculopathy to the right lower extremity, but not disability of the right knee. The November 2009 examiner also noted that over the course of physical testing during the examination the Veteran had increasing low back pain with right radicular pain. The examiner found no objective disability in the right knee, with no atrophy or hypertrophy, negative Lachman, negative McMurray, negative anterior draw, negative posterior draw, negative grind test, and no instability. The examination did produce right leg range of motion limited to 80 degrees forward flexion, though with full extension, and with tenderness along the lateral joint line. The examiner observed that the right leg limitation of range of motion was due to pain radiating down into the right leg, with right leg examination becoming increasing limited over the course of the examination due to increasing radicular pain. This contrasted with left knee range of motion, with motion in that knee limited to 112 degrees in flexion due to pain and stiffness in the knee itself and tenderness along the medial joint line. The November 2009 VA examiner ultimately concluded that there was no disability of the right knee itself, but that there was lumbar disability productive of disabling radicular pain down the right lower extremity. The examiner explained in an April 2010 addendum that this low back disability with radiculopathy resulted in moderate functional impairment. The examiner further explained in the addendum, in support of her conclusion that there was no current right knee disability, that there was no objective evidence of a right knee disability, and Veteran's subjective complaints and clinical response were inconsistent with objective findings. The Board notes that the inconsistence between objective findings and the Veteran's complaints and clinical response referable to the right knee on the November 2009 VA examination are consistent with the Board's analysis above as to the contradictions between the Veteran's narrative of past history of right knee injury, disability, and treatment in service, and the service treatment and examination records (leading to the Board's conclusion that the Veteran's self-reported narrative of past symptoms and history of treatment for his right knee are without credibility). Based on this consistence of the contradictions between the Veteran's assertions and objective findings and documented historical evidence, and the Veteran's interest in the outcome as noted above, the Board concludes that the Veteran's subjective assertions that his current right knee symptoms reflect a disability of the right knee are entitled to less weight than the opinion of a trained health care professional that right knee symptoms are the result of lumbar radiculopathy extending into the right lower extremity. Based on the above, including the absence of objective findings of right knee disability either in service or in post-service treatment records or x-ray findings, and absence of objective findings (those not relying on the Veteran's clinical responses) within VA examinations for compensation purposes, and the VA examiner's opinion that the Veteran does not have current right knee disability but rather only has low back radiculopathy impacting functioning of the right leg, the Board concludes that the evidence preponderates against the presence of current right knee disability. On the same bases, the Board finds that the preponderance of the evidence is against the presence of current right knee disability over the entire appeal period beginning from the November 2004 date of the Veteran's submission of his application to reopen the claim for service connection for a right knee disability. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication.) Because the Board finds the preponderance of the evidence against the presence of current right knee disability, that essential element of the claim for service connection either on a direct or a secondary basis is lacking, and the claim for entitlement to service connection for a right knee disability must be denied. Because the preponderance of the evidence is against the claim, the benefit of doubt doctrine does not apply. 38 U.S.C.A. § 5107; Gilbert. ORDER The application to reopen the claim for entitlement to service connection for a right knee disability is granted. The reopened claim for entitlement to service connection for a right knee disability is denied. The application to reopen the claim for entitlement to service connection for lumbar degenerative disk disease is granted. REMAND While the Veteran was afforded a VA examination in November 2009 addressing his claim for service connection for lumbar degenerative disk disease, that examination report and an April 2010 addendum to that examination report failed to provide the requisite opinion addressing whether the Veteran's service-connected left knee disability aggravated his lumbar degenerative disk disease. The question of aggravation is an integral part of a secondary service connection claim, see 38 C.F.R. § 3.310(b), and the absence of an answer to this question requires remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: 1. Contact the examiner who conducted the November 2009 examination addressing the claimed lumbar degenerative disk disease. The claims folders must be made available to the examiner for review. The examiner should be asked to answer the following: Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's lumbar degenerative disk disease was aggravated (permanently increased in severity) by his service-connected left knee disability. The examiner should note that this specific question was not answered in either the November 2009 examination report or in the subsequent April 2010 addendum to that report. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If any opinion and supporting rationale cannot be provided without medically unsound guesses or judgment based upon mere conjecture, the examiner should clearly explain why this is so for each opinion and supporting rationale not provided. 2. If the RO or AMC is unable to obtain the requested addendum opinion from the November 2009 VA examiner, then an additional VA examination for compensation purposes must be obtained to address the questions posed in the above remand instruction. 3. Thereafter, the RO/AMC should readjudicate the remanded claim for entitlement to service connection for lumbar degenerative disk disease. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs