Citation Nr: 1237126 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-41 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to June 1991. Thereafter, he had unverified periods of active duty for training and/or inactive duty training as a member of the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2012, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO. A written transcript of this hearing was added to the claims file. FINDING OF FACT A right knee disorder was not noted in service or within a year thereafter; the current right knee disorder is not related to service. CONCLUSION OF LAW A right knee disorder was not incurred in or aggravated by service, or manifested within a year thereafter, or as the result of any incident of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Service connection may also be awarded for certain disabilities, such as arthritis, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2012); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board notes that the Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. He has also alleged his right knee disorder began during such service. VA is authorized to pay compensation to any Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, if the disability became manifest during service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of disability of 10 percent or more prior to December 31, 2011. Compensation is payable under these provisions if by history, physical examination and laboratory tests the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. In the present case, however, the Veteran has been diagnosed with a tear of the medial meniscus of the right knee, status post-arthroscopy. As this disorder is a diagnosed condition, service connection is not warranted under the presumptive provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. The Veteran was without any abnormalities of the right knee when he was examining for service entrance in June 1983, and he denied any history of knee or joint pain. His service treatment records are also negative for any diagnosis of or treatment for a right knee disorder. During a May 1991 service separation examination, his lower extremities were normal on physical evaluation, and on a concurrent report of medical history, he denied any history of a "trick" or locked knee, or any sort of joint deformity. In September 1991, the Veteran filed a claim for disabilities unrelated to his right knee. He did not claim a right knee disorder at that time and, upon VA general medical examination in October 1992, he also did not report a right knee disease or injury. Following service separation, the Veteran joined the Army National Guard in 1991. In multiple periodic medical examinations, medical certifications, and reports of medical history dated between 1992 and 2002, he denied any current right knee disabilities, as well as any history of the same. He also received occasional medical treatment from VA between 1999 and 2001; he did not, however, report a right knee disorder at that time. Private medical records confirm that in approximately November 2002, the Veteran began experiencing sharp pain in the right knee upon returning to work from vacation. A January 2003 private MRI confirmed tears in the lateral meniscus and inferior insertion of the anterior cruciate ligament, along with chondromalacia patella and moderate suprapatellar effusion. He underwent a right knee arthroscopy in February 2003. A March 2003 attending physician's report noted that the Veteran exhibited no evidence of a pre-existing injury. In January 2003, the Veteran filed a claim for worker's compensation in which he stated he injured his right knee climbing stairs while working as a postal carrier. He also requested in January 2004 a medical discharge from the National Guard, stating that he hurt his right knee at work, and was no longer able to perform his duties as a member of the Guard. In a May 2004 VA examination, the Veteran reported onset of right knee pain in approximately October 2002, when he returned from vacation to his job as a mail carrier with the U.S. Postal Service. He stated that upon his return to work, he had to deliver more than his usual amount of mail, and noticed a sharp pain in his right knee. Within a June 2004 statement, he again stated his right knee injury was "not a service related injury while I was in the Regular Army." Rather, this injury was incurred in December 2002, while working as a postal carrier. Nevertheless, he stated he was seeking "monthly checks through VA." In a subsequent July 2004 statement, the Veteran stated he was involved in a motor vehicle accident during his deployment in Southwest Asia during the Persian Gulf conflict. His vehicle struck the vehicle in front of him in a convoy, and his right knee struck the dashboard, injuring his right knee. He denied seeking or receiving treatment at that time. In support of his claim, the Veteran submitted his own written statements, as well as an October 2006 statement from his mother. She stated that upon his return from service in Southwest Asia, he reported a right knee injury to her. She encouraged him to seek VA treatment, but he did not want to disclose that he had a disability at that time. He voiced similar contentions at his May 2012 hearing before the Board where he testified that he injured his right knee in a motor vehicle accident, but did not want to leave his unit, and thus did not seek medical attention at that time. Also received was an October 2006 letter from G.L., M.D., a private physician who stated he began treating the Veteran for his right knee disorder in 2002. According to the Veteran's account, he injured his right knee during Operation Desert Storm in 1991, and had pain of the right knee since that time. After considering the totality of the record, the Board finds the preponderance of the evidence weighs against the grant of service connection for a right knee disorder. As noted above, the service treatment records are negative for any diagnosis of or treatment for a right knee disorder. By the Veteran's own admission, he did not receive medical treatment for his alleged right knee injury during his period of active duty in 1991, and was not seen for a right knee injury for several years thereafter. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran has himself asserted a continuity of right knee symptomatology since his claimed motor vehicle accident during service in Southwest Asia. Generally, a layperson is competent to report such observable symptomatology as chronic joint pain. 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). In the present case, however, the Board does not find the Veteran to be a credible reporter of his right knee symptomatology. Even assuming he sustained a right knee injury during his active duty service, his service separation examination characterized his right knee as normal at that time, and he denied any history of a right knee injury on his concurrent report of medical history. Additionally, on multiple periodic medical examinations, medical certifications, and reports of medical history dated between 1992 and 2002 completed while the Veteran was a member of the National Guard, he denied a right knee disorder, and none were noted on objective evaluation. An October 1992 VA general medical examination was also negative for a right knee disorder. Thus, his current reports of chronic right knee pain are contradicted by his denials of a right knee disorder for over 10 years following his 1991 service separation. The Veteran has alleged that he did not report his right knee injury immediately following service because he was afraid he would not be hired by anyone if he claimed a disability. The Board notes, however, that he filed a 1991 VA compensation claim for hearing loss and claimed chemical exposure. Moreover, when he first sought treatment for his right knee in 2002 and 2003, he stated he injured his right knee while working as a postal carrier, and denied any history of a prior right knee injury. Moreover, initial private treatment records noted that there was no evidence of a prior or pre-existing injury to the Veteran's right knee. He stated the same cause to his injury when he filed a claim for worker's compensation, and when he first filed a VA benefits claim. Several months later, however, was the first occasion during which he began to claim he injured his right knee during his period of active duty from 1983-91. For this reason, the Board assigns greater probative weight to the Veteran's more contemporaneous statements attributing his right knee injury to an on-the-job injury in 2002. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Additionally, the inherently contradictory statements from the Veteran diminish his credibility. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Likewise, because his mother's October 2006 statement appears to be merely a recitation of his own self-reported history which has not been found credible by the Board, her statement as well is found to lack probative value. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. Therefore, the Board must also consider whether any current right knee disorder is related to a disease or injury incurred during service. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's right knee disorder to active duty or any incident thereof, despite his contentions to the contrary. While the October 2006 statement from Dr. G.L. noted that he first began treating the Veteran in 2002, many years after service and the alleged 1991 in-service right knee injury, the private physician did not indicate he reviewed any other medical records, to include service treatment records. Dr. L. also reflected that the Veteran himself provided the reported history of a 1991 right knee injury resulting from a motor vehicle accident. A bare transcription of lay history is not transformed into medical evidence simply because it was transcribed by a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, the October 2006 statement from Dr. L. does not establish a medical nexus between an in-service disease or injury and the Veteran's current right knee disorder. In the absence of competent evidence to the contrary, the Board concludes that the preponderance of the evidence is against a medical nexus between the Veteran's service and his current right knee disorder. In light of the above, the Board finds that the preponderance of the evidence is against the claim for service connection for a right knee disorder, and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in June 2004 and October 2004 that fully addressed all notice elements and were sent prior to the initial January 2005 RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. There is, however, is no prejudice in issuing a final decision in the present case because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are therefore moot. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private medical treatment records, as identified by the Veteran. The Board notes that the medical evidence of record contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Veteran's statements as to continuity of symptomatology are found to lack credibility as detailed above, and insufficient competent evidence has been presented to trigger VA's duty to order another medical examination or request an opinion. In fact, at the May 2004 VA examination, he attributed his right knee to an on-the-job injury. That he has now changed his story, which the Board finds not credible, does not trigger the need for another VA examination. In May 2012, the Veteran testified before a Veterans Law Judge. During the hearing, the Veterans Law Judge clarified the issue on appeal and asked about the possibility of forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Therefore, all available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a right knee disorder is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs