Citation Nr: 1301108 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-30 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from July 1962 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia. In October 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in February 2012 and was remanded for further development. It has now returned to the Board for further appellate consideration. At the time of the February 2012 remand, the Board also remanded the issue of entitlement to service connection for a right ankle disability. In a December 2012 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for a right ankle disability. Therefore, that issue is no longer for appellate consideration. FINDINGS OF FACT 1. The Veteran is less than credible with regard to the onset of his left knee disability. 2. The earliest clinical post-service evidence of record of a left knee disability is in 1999, 35 years after separation from service. 3. The competent credible evidence of record is against a finding that the Veteran has a current left knee disability casually related to active service. CONCLUSION OF LAW A left knee disability was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In correspondence to the Veteran in February 2006 and July 2007, VA informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The July 2007 correspondence also informed him of the criteria pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant therefore, has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claim's file contains the Veteran's service treatment records (STRs), VA and private medical records, and the Veteran's statements in support of his claim. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to attempt to obtain. The Veteran has asserted that he had treatment for his left knee in the 1970s, but that the provider is deceased and he is unable to obtain records from any such treatment. Thus, the Board finds that VA does not have a duty to attempt to obtain any additional records. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a further duty to obtain. A VA examination and opinion with respect to the issue on appeal was obtained in February 2012. 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 VA examination/opinion is adequate, as it includes a clinical examination, a review of pertinent medical records, and an interview with the Veteran regarding his symptoms and treatment. Rationale was provided for the opinion proffered. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal criteria Service connection- in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred, or a disease contracted, in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also 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). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit. 557 F.3d 1355 (Fed. Cir. 2009). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran avers that he has a left knee disability as a result of active service. The first element of a claim for service connection is that there must be evidence of a current disability. A February 2012 VA examination report reflects a diagnosis of a degenerative joint disease (DJD) of the left knee. The clinical records also reflect that the Veteran has had a left knee meniscal tear. Thus, the first element has been met. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's STRs reflect that in February 1963, he had complaints of "frequent episodes of 'trick' left knee." Upon clinical examination, there was no swelling or areas of tenderness and no evidence of relaxation of the ligaments. The diagnosis was "occasional trick knee mild". The Veteran was to do exercises and return if his symptoms got worse. A March 1963 radiology report reflects that there was no pathology of the knee joint and "no significant abnormalities noted" upon x-ray. There are no subsequent STRs which reflect complaints of, or treatment for, the left knee. In this regard, the Board notes that there are subsequent STRs for complaints of, or treatment for, chest discomfort (left clavicle) (July 1963), swollen finger (September 1963), swollen gum (October 1963), pes planus (November 1963), sprained left wrist (January and February 1964), scalp disease (May1964), right foot (March 1964), weakness (April 1964), and male pattern baldness (May 1964). The May 1964 Veteran's report of medical history for separation purposes reflects that the Veteran denied having a "trick or locked knee." The report of medical examination for separation purposes reflects normal lower extremities upon clinical examination. The Board finds that if the Veteran had continued complaints of the left knee after March 1963, it would have been reasonable for him to have sought further medical treatment in service as he reported numerous other complaints, or to have reported it upon separation; he did not. The Veteran testified at the October 2011 Board hearing that in 1963, he was unloading a tank track when a piece of the track fell and landed on both of his feet and legs. He further testified that he had x-rays taken and was placed on light duty. (See Board hearing transcript page 4.) The Veteran contended that he saw a doctor periodically when he had pain, but in approximately 1970, he started seeking treatment for his knee in the 1970s. (See Board hearing transcript page 8.) The Veteran's testimony is not supported by his STRs. As noted above, his STRs do reflect complaints with regard to the left knee in 1963; however, the complaints were related to a "trick" knee and there was no pain, no swelling, and no tenderness. He was asymptomatic as to pain in the feet and lower leg. He was not placed on light duty, but was instead prescribed exercises. The STR is entirely negative for anything falling on his knee or leg. A March 1964 STR reflects that the Veteran dropped a heavy box on his right foot; however, the STR is entirely negative for complaints with regard to the left knee at that time. The STR does note that the Veteran was placed on bed rest until the next morning. The radiology report reflects the box fell on the middle of the right foot. There is no x-ray, findings, or complaints, with regard to the left knee. The Board finds that if the Veteran had injured his left knee at that time, it would have been reasonable for it to have been noted in his STRs, especially as he now contends that he had such symptoms as bruising and swelling of his lower extremity. While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) The third element of a claim for service connection is a competent clinical opinion causally relating a current disability to service or continuity of symptomatology since service. The Board finds, as discussed below, that this element has not been met. The earliest clinical evidence of left knee complaints is in August 1999. Records in 1999 reflect a recent onset of left knee pain. An August 1999 private clinical record reflects left knee swelling. It was noted that the Veteran had pain and swelling for one week. September 1999 correspondence from Dr. R.C. reflects the statement of Dr. R.C. that the Veteran has increased left knee pain, which Dr. R.C. believed was bicompartmental DJD. September 1999 records from Dr. R.C. note that the Veteran "began having pain in his knee several weeks back. He is an avid walker, walks six miles three times a week as well as does treadmill training during the other several days during the week. He began having some medial knee pain, swelling, with no locking, no instability and occasional night pain." An October 1999 private clinical record reflects left leg and knee pain. A January 2000 private clinical record from Emory Healthcare reflects that the Veteran had left knee pain. A July 2001 private clinical record from Dr. J.X., Emory healthcare, reflects that the Veteran sought treatment for evaluation of his left knee. It was noted that he had "increasing left-sided knee pain. It is isolated as medial joint line. He also has what appears to be some catching. Of note is that he is a very athletic individual who runs, bikes and works out." The diagnosis was medial meniscal tear. It was further noted that x-rays show "some medial-sided narrowing, but no significant arthritis." An August 2001 private record from Dr. J.X. reflects that the Veteran was having left side medial knee pain, and that an MRI demonstrated a medial meniscal tear. The Board notes, however, that an MRI report, apparently from August 2001, actual reflects "degenerative changes of the posterior horn of the medial meniscus. No definite meniscal tear is identified." An October 2001 Emory Clinic reflects that the Veteran had surgery on his left knee for a complex tear of the posterior third of the medial meniscus. A November 2003 orthopedic surgery record reflects that the Veteran "sustained injury to his left knee and right foot when allegedly a heavy tank track landed on his lower extremities. The tank track evidently caused direct torsion type trauma to his left lower extremity and impact to his right foot. It occurred on a military base while serving in Germany. His injury related treatment subsequently included a left knee medial mensicectomy." The examiner could not exclude the Veteran's current left knee disability as being part of the alleged tank track injury occurring in 1963. The Board finds that the statement by the examiner with regard to the etiology of the Veteran's left knee disability is less than probative as it is based on the self-reported and unsupported history of the Veteran. The Board finds that the Veteran's report of an injury to his left knee, from an object falling on it, in service is less than credible when considered with the record as a whole. As noted above, his STRs are entirely negative for an injury to his left knee due to an object falling on it. In addition, his report of medical examination for separation purposes is negative for any knee complaints, and his report of medical history for separation purposes is negative for knee complaints. The mere recitation of a veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). In addition, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). An October 2005 clinical record from Dr. D.V. reflects that the Veteran has "long standing knee" pain "dating back over the last 10-15 years", or since approximately 1990; this onset would be approximately 26 years after separation from service. A December 2005 clinical record reflects spur formation over the left knee. As noted above, the Veteran underwent a VA examination in February 2012. The examiner opined that it is less likely than not that the Veteran's left knee disability was incurred in or caused by service. The examiner considered that the STRs reflected complaints of the left knee; however, he also considered that the Veteran's separation examination was negative for any lower extremity disability, and that the Veteran had a post service meniscus tear. He found that the Veteran's knee disability is related to the meniscus tear post service and the Veteran's age. Thus, the Board finds that the competent clinical evidence of record is against a finding that the Veteran has a left knee disability causally related to active service. As noted above, the third element for entitlement to service connection may be a competent clinical opinion causally relating a current disability to service or continuity of symptomatology since service. The Board finds, for the reasons noted below, that there is no credible continuity of symptomatology since service. The Veteran is competent to report pain or difficulties with his left knee. However, competency is not the same as credibility. The Board finds that any statement by the Veteran that he has had symptoms of a left knee disability since separation from service is less than credible when considered with the record as a whole. The earliest post service clinical evidence of a left knee disability is in 1999, approximately 35 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Not only is there a lack of clinical evidence of complaints for 35 years, but the Veteran denied knee problems upon separation, and his separation examination was normal for the lower extremities. In addition, the August 1999 private clinical record reflects left knee pain and swelling for one week, and the September 1999 records reflect onset of left knee pain as "several weeks" earlier. An October 2005 clinical record reflects long standing knee pain for 10-15 years. Such records are against a finding that the Veteran had symptoms of a left knee disability since service. In addition, the September 1999 clinical records reflect that the Veteran walked six miles three times a week as well as treadmill training during the other several days during the week. The Board finds that if the Veteran had been having difficulties with his left knee since 1964, it would not be reasonable for him to be an avid walker, and to not mention a three decade history of symptoms to his clinician and for such to be noted in the clinical records. In addition, the Board notes that the Veteran filed a claim for entitlement to service connection for his feet and a hearing loss disability in 1978. The VA Form 21-526 is negative for any left knee disability. The Board finds that if the Veteran had been having left knee complaints since service, it would have been reasonable for him to have filed a claim for it when he filed him claim in 1978; he did not. The Veteran also filed a claim for entitlement to service connection for a bilateral foot disability in December 2001. Again, he did not file a claim for entitlement to service connection for a left knee disability at that time. The Veteran may sincerely believe that he has a left knee disability causally related to active service; however, he has not been shown to have the medical expertise or training necessary to make findings of medical diagnosis or causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of competent medical evidence relating a current left knee disability to service, and in the absence of credible evidence of continuity of symptomatology since service, the Board finds that service connection is not warranted. The Board has considered the benefit of the doubt rule but finds that it is not applicable because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a left knee disability is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs