Citation Nr: 1301079 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-22 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran had active service from May 1994 to April 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction over this case currently belongs to the RO in Waco, Texas. This case was previously before the Board in June 2011. The June 2011 Board decision found that the Veteran had submitted new and material evidence to reopen a previously denied claim of service connection for a left knee injury and remanded the underlying service connection claim for additional development that included a VA examination, which was conducted. In February 2012 the Board again remanded the Veteran's claim so that the RO/Appeals Management Center (AMC) could attempt to obtain private and VA medical treatment records, which a review of the Veteran's physical claims file and Virtual VA electronic claims file, show has been accomplished regarding the VA treatment records. Additionally, the Board notes that in the Veteran's VA Form 9, which was received by VA in June 2009, he indicated that he wanted to have a hearing before the Board at the RO. The Veteran was scheduled for a travel board hearing on March 24, 2011. However, the record reflects that he failed to report for the scheduled hearing. The Board finds that there is no Board hearing request pending at this time. 38 C.F.R. § 20.702(d) (2011). FINDINGS OF FACT 1. Symptoms of a left knee disability have not been continuous since service separation; left knee pathology was not identified until 2006. 2. The current left knee disability is unrelated to service. CONCLUSION OF LAW A left knee disability was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely pre-adjudication June 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claim for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. The notice included provisions for disability ratings and for the effective date of the claims. The RO also provided the Veteran with post adjudication by letters dated in June and July 2011, and re-adjudicated his claim in an October 2012 Supplemental Statement of the Case (SSOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affm'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) The Board is also satisfied VA has made reasonable efforts to obtain any identified relevant records and evidence. The Veteran's service treatment records (STRs) and VA and private medical treatment records were obtained. He has not reported that he is in receipt of, or has applied for, disability benefits from the Social Security Administration (SSA). The Veteran was provided with a VA examination to determine the nature and etiology of his claimed left knee disability in August 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the opinion and findings obtained in this case are adequate, as the opinion is predicated on a full reading of the private and VA medical records in the Veteran's claims file. The nexus opinion provided considered all of the pertinent evidence of record, to include service treatment records (STRs) and the statements of the Veteran, was based on an accurate factual basis, and provided a rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Recent correspondence, including letters from the AMC requesting the Veteran identify private medical providers so that records could be obtained by the RO/AMC as ordered by the February 2012 Board remand, were sent to the Veteran's last two addresses of record, but were returned as undeliverable. No forwarding address was provided. The Board notes that a copy of the October 2012 SSOC was also sent to the Veteran's representative. The Veteran has not submitted a change of address form to VA and had not otherwise informed VA of his whereabouts. It is well established that it is the Veteran's responsibility to keep VA advised of his whereabouts in order to facilitate the conducting of a medical inquiry. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Because the October 2012 SSOC was sent, according to procedure, to the Veteran's address of record at that time and a copy was sent to his authorized representative, and because the Veteran has not provided VA with a current valid mailing address, the Board finds that no further action is required by VA to fulfill its duty to notify and assist the Veteran. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). For these reasons, the Board is satisfied that VA has fulfilled the duties to notify and assist required by the VCAA, and appellate review may proceed without prejudicing the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease 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. 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). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 469. Additionally, lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran, as a lay person, is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) citing Jandreau). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Analysis STRs reflect that the Veteran was treated on November 10, 1995, for left knee pain after injuring it playing basketball. He was ambulatory. Examination revealed no effusion, full flexion and extension, and negative Latchman's. His knee was tender. His condition was noted to have improved on release and he was referred to orthopedics in 1 week. STRs dated on November 14, 1995, noted that the Veteran complained of a left knee injury that occurred 4 days earlier. Following a physical examination, which found +2/5 edema and pain on extension, an assessment of possible strain was given. Additional STRs dated on November 14, 1995, noted that the Veteran was given an assessment of LCL strain, and that he was given crutches, was not to do physical training until November 17th. There are no further STRs related to his left knee. The Veteran did receive treatment in March 1996 for complaints of right leg pain or pulled hamstring while he was sprinting. He was given an assessment of hamstring strain, right, and there was no mention of left knee complaints or treatment. There is no discharge or separation examination of record. Next, post-service evidence does not reflect left knee symptomatology for many years after service discharge. Specifically, a November 2006 private diagnostic radiology record noted that the Veteran had a history of trauma and his left knee had no definite fracture identified. It was noted that if he continued to have clinical symptoms, a MRI of the knee was recommended to evaluate for possible bone contusion or subtle occult fracture. March 5, 2007 private treatment records noted that the Veteran complained of left knee pain for two to three months. He reported that he was injured while riding his bicycle. He fell on his right side and had shoulder pain. Previously he did have some left knee pain and had a prior basketball injury. He also reported that he hurt his knee while in the Army and had four years of active duty. It was noted further that he was interested in proceeding with a MRI, and that the Veteran reported that he played football as well. A physical examination was conducted and revealed tenderness of the left knee and mild effusion. The November 2006 knee X-rays discussed above were noted by the treating physician. A diagnosis of rule out internal derangement of the left knee was given, and the examiner noted that a MRI was required. A private treatment record dated on March 31, 2007, noted that the Veteran complained of an acute injury grossly 2 months ago. In a section of the treatment report titled "History of Present Illness," it was noted that the Veteran initially had a left knee injury while in the military, but continued his regular duties and had intermittent left knee pain. It was also reported he had military service in the Army for 8 years. Two months ago, while playing basketball, he jumped and while coming down twisted his left knee. He reported feeling a popping sensation in the lateral side of the knee and it began to swell; he iced it and took over the counter medications. Following a physical examination, he was given impressions of left knee sprain/strain, mechanical knee pain based on his complaints, and rule out possible meniscal pathology. The examiner noted that his MRI was re-scheduled for the upcoming month. The treating physician also noted that he believed the Veteran to be obese and that there was too much strain on the knees; it was recommended he lose some weight. A March 2008 VA MRI report of the left knee revealed a vertical tear through the lateral meniscus. The November 2006 private treatment record is the first recorded symptomatology related to a left knee disorder after service, coming some 10 years after discharge. Therefore, the medical evidence does not reflect continuity of symptomatology. As part of the current VA disability compensation claim, in recent statements the Veteran has asserted that his left knee symptoms have been continuous since service. Specifically, in his May 2009 VA Form 9, he reported that since his initial injury his knee has been different and that he has had pain for a long time. He also reported that his MRI showed he had a tear that had been there for years caused by his injury and that it was falsely diagnosed as a strain. Similarly, in the March 2007 private treatment record discussed above, he reported that the has had intermittent left knee pain, and in a February 2008 VA treatment report he reported that he injured his left knee when jumping off a Humvee in-service and has had pain ever since. During his August 2011 VA examination he reported injuring his knee while jumping off a 5 ton into the sand and while playing basketball. He reported that his knee never got better. Additionally, in an October 2007 written statement the Veteran's wife reported that he injured his knee when exiting a 5 ton Army vehicle. He somehow popped his knee and has had problems ever since. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of left knee pain or other symptomatology after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. During his March 5, 2007 private treatment the Veteran complained of left knee pain for two to three months following a fall from his bicycle, and that he previously had some left knee pain and a prior basketball injury. Similarly, the March 31, 2007, private treatment record reflected that he complained of an acute injury grossly 2 months ago after twisting his knee playing basketball, and that he had a left knee injury in the military and reported intermittent left knee pain. Therefore, it is clear that during his March 5, 2007, treatment he reported left knee pain for only two or three months after his post service bicycle accident and that he had previously had some left knee pain associated with a prior basketball injury. While he also reported he hurt his knee in the Army, at that time he did not report continuous symptoms after service related to the inservice knee injury. During his March 31, 2007 treatment he reported that he had intermittent left knee pain following service, but injured his knee 2 months ago. Conversely, in lay statements made during his August 2011 VA examination, he reported that his knee never got better following his in-service injuries, and in his VA Form 9 he reported that since his initial injury his knee has been different and that he has been in pain for a long time. Similarly, in her October 2007 written statement, the Veteran's wife reported that he injured his knee when existing a 5 ton Army vehicle and has had problems ever since. Therefore, the Veteran has reported the onset of symptoms at different times, especially during his March 5, 2007, private treatment when he clearly reported left knee pain for only two to three months and that he had previous left knee pain when he hurt his knee in the Army. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); 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). Additionally, it is observed that the Veteran and his wife have not consistently reported his in-service injury. In statements made to VA and private health care providers the Veteran has reported injuring his knee while exiting a Humvee or 5 ton vehicle, but his STRs reflect his in-service injury was a result of a basketball injury. Similarly, he has made inconsistent reports regarding the length of his service to private treatment providers, reporting that he served 4 and 8 years, when his DD Form 214 shows that he served only approximately 2 years. See Madden, 125 F.3d at 1481; Caluza, 7 Vet. App. at 512. Furthermore, during his March 5, 2007, treatment he reported left knee pain for two to three months rather than pain that had been continuous since service. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Finally, the post-service medical evidence does not reflect complaints or treatment related to a left knee condition for approximately 10 years following active service, and such treatment occurred immediately after left knee biking and basketball injuries that occurred in approximately 2006 or 2007. There is a multi-year gap between discharge from active duty service (1996) and initial reported symptoms related to a left knee condition in approximately 1996 (nearly a 10-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the absence of medical treatment is not the sole basis for finding the Veteran not credible in his assertions of a continuity of left knee pain since active service, but is considered one factor along with other evidence discussed above in finding him not credible in his assertions. The Board has weighed the Veteran and his wife's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous statements made for treatment purposes and absence of complaints or treatment for years after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's left knee disability to active duty, despite his contentions to the contrary. To that end, the Board places significant probative value on an August 2011 VA examination undertaken specifically to address the issue on appeal. At that time, the Veteran reported injuring his left knee during service and that it did not get better since that time. The examiner discussed the Veteran's left knee injury during service in November 1995, and post service medical treatment records, including the March 31, 2007 private treatment record. After a physical examination and a review of medical imaging reports, the examiner diagnosed the Veteran with torn meniscus, status post arthroscopic repair, left knee. The examiner opined that it was less likely than not that the Veteran's current knee condition is due to the knee injury sustained during service. The examiner's opinion was based on the rationale that his acute in-service injury in 1995 most likely resolved since there are no medical records documenting ongoing problems and he was able to play basketball after that injury until his post miliary left knee injury in 2007. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, conducted a physical examination, and provided a cogent rationale for his medical opinion. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has also considered the Veteran and his wife's statements asserting a nexus between his currently-diagnosed left knee disability and active duty service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses and his wife is competent to report what she observes regarding the Veteran's left knee, their statements as to a continuity of symptoms of his claimed disabilities have been found to lack credibility. As lay persons without any medical training they are not competent to provide evidence on questions of etiology, such as whether his claimed left knee torn meniscus, status post arthroscopic repair is related to an in-service injury or post-service basketball injury where he had a popping sound on the lateral side of his left knee . See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); Davidson, 581 F.3d at 1316; Layno, supra. Thus, their opinions regarding the etiology of the Veteran's claimed left knee disability are greatly outweighed by the opinion of the August 2011 VA examiner. Finally, where certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from the date of separation from service, such disease shall be considered to have been incurred or aggravated by such service, notwithstanding there is no evidence of that disease during service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). In this case, the Veteran has not been diagnosed by a medical professional with arthritis of the left knee, however, a February 2008 VA treatment record does note an impression of minimal cartilage thinning of the lateral compartment of the left knee. To the extent that he does have arthritis of the left knee, there is no competent evidence indicating that the Veteran was diagnosed with arthritis of the left knee to a compensable degree within one year of separation from service; nor is the Veteran competent to provide such evidence given that he is a lay person and a diagnosis of arthritis to a compensable degree requires diagnostic testing by a medical professional; thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309; 38 C.F.R. § 4.71a, Diagnostic Code 5003. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for a left knee disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left knee disability is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs