Citation Nr: 1109601 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 07-36 938 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1989 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the RO in Muskogee, Oklahoma, which determined that new and material evidence had not been received to reopen a claim of service connection for a bilateral knee condition. In October 2010, the Board reopened and remanded the claim for further development. The case now returns for appellate consideration. The Veteran testified at a September 2010 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. During the pendency of the appeal, a temporary file was created and associated with the claims file. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's bilateral knee disability had its onset in service, that arthritis manifested within one year of service separation, or that the bilateral knee disability is otherwise related to his active military service. CONCLUSION OF LAW A bilateral knee disability was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the interest of clarity, the Board will first discuss certain preliminary matters. Then the Board will render a decision. The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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). As noted above, in October 2010, the Board reopened and remanded the issue currently on appeal. The Board instructed the RO to schedule the Veteran for a VA examination and readjudicate the claim. The Veteran was provided a VA examination in November 2010. Thereafter, the claim was readjudicated in a January 2011 supplemental statement of the case (SSOC). Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. Prior to the initial adjudication of the Veteran's claim, a letter dated in January 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letter advised the Veteran of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claim, and advised to send any medical reports that he had. He was also told that it was ultimately his responsibility to support the claim with appropriate evidence. In addition, the letter provided the Veteran with notice concerning the assignment of disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been associated with the file. The Veteran indicated at the September 2010 videoconference hearing that there were additional records that he wished to submit in support of his appeal. The record was held open for 30 days to afford the Veteran an opportunity to submit evidence. Since then, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was afforded a VA examination in November 2010 to assess the current nature and etiology of his bilateral knee disability. The Board finds this opinion to be comprehensive and sufficient in addressing the matter of current disability and nexus. In this regard, it is noted that the opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation for the conclusions that were reached. The Board, therefore, concludes that the examination report is adequate upon which to base a decision in this case. See Nieves-Rodriguez, supra. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection The Veteran contends that he has a bilateral knee disability as a result of service. For the reasons that follow, the Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may also be granted for a chronic disease, including arthritis, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). In order to establish service connection for the claimed disorder, there must generally 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). At the September 2010 videoconference hearing, the Veteran testified that his duties in service involved extensive crouching, kneeling, and climbing up and down ladders while carrying heavy equipment, which put a lot of stress and strain on his knees. He related that following service separation, he tried to treat the pain himself by using over the counter knee braces. A review of the Veteran's service treatment records reveals that the Veteran was seen in October 1992 with complaints of bilateral knee pain. It was noted that there was a chronic problem with the left knee. Also reported was a history of patellofemoral syndrome, which was now acting up. Following a physical examination, the Veteran was assessed as having patellofemoral syndrome bilaterally. At separation examination in December 1992, the Veteran reported a history of swollen or painful joints, specifically bilateral knee pain, and findings of bilateral patellofemoral syndrome were documented. In this regard, the Veteran is shown to have incurred a bilateral knee injury in service. The medical evidence of record reveals current treatment for bilateral knee pain. VA treatment records reflect that X-ray study of the bilateral knees was taken in July 2007. These X-rays revealed no abnormality in the right knee and slight demonstrated narrowing of the medial joint space and mild lateral subluxation of the patella in the left knee. An October 2009 private treatment report from J.R. Pittman, M.D. shows that the Veteran complained of pain in his knees. He reported that his knees popped and clicked and that they hurt when he went down and got back up. Orthopedic assessment revealed tenderness of the joint line both medially and laterally bilaterally but no effusions; the ligaments were full to confrontation. The assessment was degenerative osteoarthritis of the knees. In view of the foregoing, the Board finds there to be evidence of a current disability. The Veteran was afforded a VA examination in November 2010 to assess the current nature and etiology of his bilateral knee disability. The Veteran stated that he did not seek treatment for knee pain between 1993, the year of his discharge from service, and July 2007, when he was diagnosed with degenerative joint disease of the left knee. Although the July 2007 X-rays showed no abnormality of the right knee, the Veteran did have complaints of pain in both knees at that time. The Veteran reported that his bilateral knee pain had progressively worsened since 2007. After conducting a physical examination and obtaining a new X-ray study, the examiner diagnosed the Veteran with chronic strain of the right knee and degenerative joint disease of the left knee. As to the question of etiology, the examiner opined that the Veteran's bilateral knee disability was less likely than not related to his active military duties. It was pointed out that while there was inservice treatment for knee problems, there was no evidence of treatment for knee problems from 1992 to 2007 despite his being seen for a variety of other musculoskeletal problems. It was concluded that there was no evidence that his acute condition in service became chronic after his discharge. The Board notes that this opinion was rendered based on a thorough review of the claims file and was accompanied and supported by a factually accurate, fully articulated, and soundly reasoned rationale. See Nieves-Rodriguez, supra. Taking into account all of the relevant evidence of record, the Board concludes that the medical evidence fails to establish a nexus between the Veteran's current disability and his active military service. See Hickson, supra. The Board has considered the Veteran's self-reported continuity of symptomatology of bilateral knee pain dating back to his service. See Jandreau, 492 F.3d 1372; Buchanan, 451 F. 3d at 1336. However, post-service medical records do not show evidence of arthritis within the first year of service separation, nor do they reflect any objective findings of a knee disorder until July 2007 when the Veteran was shown to have narrowing of the medial joint space and mild lateral subluxation of the patella in the left knee. Although the Veteran filed a claim of service connection for a bilateral condition shortly after discharge, a May 1993 VA general medical examination was negative for any abnormalities of the musculoskeletal system. In this case, while the Veteran's lay statements are within his competence to make, and are of some probative value, the Board ultimately places more probative weight on the medical evidence of record, to include the May 1993 and November 2010 VA examination reports, which weigh against a finding of continuity of symptomatology since service. After reviewing and weighing all of the evidence of record, the Board concludes that a preponderance of the evidence weighs against a finding that the Veteran's currently diagnosed bilateral knee disability is related to his treatment for bilateral knee pain in service. In this case, the most probative evidence of record is the November 2010 examination report, which opined that the Veteran's current bilateral knee was less likely than not caused by his active military service. Additionally, the Board observes that the earliest documented evidence of treatment for knee problems post-service is over 14years after the Veteran's separation from service. In this regard, it is noted that 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). The amount of time that passed between service and the first documented treatment for knee problems following service discharge is evidence that weighs against the Veteran's claim. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a bilateral knee disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a bilateral knee disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs