Citation Nr: 1301245 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-35 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of a contusion to the left thigh (left thigh disability). 2. Entitlement to service connection for a left knee disability, including as secondary to left thigh disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1992 to October 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The claims at issue were previously remanded by the Board in May 2011 for further evidentiary development of providing the Veteran a medical examination and nexus opinions for left thigh and left knee disabilities. This was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board notes that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran sustained left knee and thigh injuries in service. 2. Left thigh and left knee disability symptoms were not chronic in service. 3. Left knee and left thigh disability symptoms have not been continuous since service separation. 4. The Veteran does not have a current disability of the left thigh. 5. The Veteran's currently diagnosed left knee disability is not related to active service. 6. The Veteran's left knee disability is not causally related to or permanently worsened by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left thigh disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran's left knee disability was not incurred in or aggravated by active service and is not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has left thigh and left knee disabilities that began during active service. During the current claim, the Veteran asserted that he injured his left leg in service when playing basketball. The Veteran also contends that his left knee disability is caused by his left thigh disability. In a June 1993 service treatment record, the service examiner reported a left quadriceps injury, which was diagnosed as a traumatic hematoma. The Veteran's service treatment records indicate that the Veteran's left thigh and left knee injuries resolved with treatment. The Veteran was not placed on permanent profile or permanent restriction in service because of a left thigh or left knee injury. In a July 1993 service treatment record, the Veteran reported no pain in his left leg and was back to full activities. The service examiner diagnosed resolved left quadriceps strain, providing highly probative evidence against this claim. At the September 1996 service separation physical assessment, the Veteran reported a knee injury, but did not specify which knee, and the service examiner did not diagnose any left thigh or left knee injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that symptoms of left thigh and left knee disabilities have not been continuous since service separation in October 1996. Following service separation in October 1996, the evidence of record shows no complaints, diagnosis, or treatment for any left thigh or left knee disability until October 2007. The evidence shows that the Veteran first reported left thigh pain in October 2007, and a left knee disability first manifested many years after service in July 2009, notably over 13 years after service discharge, when the Veteran was diagnosed with left knee arthralgia. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection). The absence of post-service complaints, findings, diagnosis, or treatment for years after service until October 2007 is one factor, considered in addition to the other factors stated in this decision, which tend to weigh against a finding of either chronic left thigh or left knee disability symptoms in service or continuous symptoms of a left thigh or left knee disability after service separation. See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). While the Veteran is competent to state that he had left thigh and left knee symptoms at any time, including in service, the Board finds that the Veteran's more recent assertions of chronic left thigh and left knee disability symptoms in service and continuous left thigh and left knee disability symptoms since service, made in the context of the October 2006 claim for service connection (VA disability compensation) for left thigh and left knee disabilities, are outweighed by the other, more contemporaneous, lay and medical evidence of record, and are not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). The recent statements of chronic left thigh and left knee disability symptoms in service and continuous post-service left thigh and left knee disability symptoms are inconsistent with the service treatment record evidence, an absence of complaints or treatment for years after service, and the histories and symptoms credibly reported by the Veteran during post-service VA and private treatment. The Veteran's recent statements of chronic left thigh and left knee disability symptoms in service and continuous post-service left thigh and left knee disability symptoms are inconsistent with the Veteran's own histories and the findings in post-service VA and private treatment records. Private treatment records dated from January 2002 to June 2005 do not reflect any report of an in-service left thigh or left knee injury, chronic left thigh or left knee disability symptoms in service, or continuous left thigh or left knee disability symptoms since service separation. VA treatment records dated from April 2005 to October 2007 do not reflect any report of an in-service left thigh or left knee injury, chronic left thigh or left knee disability symptoms in service, or continuous left thigh or left knee disability symptoms since service separation. For treatment, the Veteran would be expected to give a full and accurate history to get good treatment. In none of these examinations for treatment does the Veteran mention a left thigh or left knee injury in service, chronic left thigh or left knee symptoms in service, or continuous left thigh or left knee disability symptoms since service. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991). Further, in a July 2009 VA treatment record, the Veteran reported left knee pain only for the last year. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Board also notes that the Veteran's service connection claims to VA for other disabilities in September 2004 did not include or mention a left thigh or left knee disability; the first time the Veteran had asserted left thigh and left knee injuries during service and continuous left thigh and left knee disability symptoms since service was in October 2006. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upheld Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection, but did not mention left thigh or left knee symptoms at that time. This suggests to the Board that there was no pertinent left thigh or left knee symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In this case, the Veteran demonstrated in September 2004 that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for left thigh or left knee disability at the time of the September 2004 claim, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the lack of left thigh or left knee symptomatology at the time he filed the claim. The Board finds that the Veteran does not have a current left thigh disability. In an October 2007 VA treatment record, the Veteran reported pain in his left quadriceps muscle. In the August 2011 VA orthopedic medical opinion, the VA examiner opined that the Veteran has no residuals of a left thigh injury. The VA examiner reported left hip with full range of motion, without pain, and normal left hip muscle strength. In this case, despite the Veteran's subjective complaint of left thigh symptoms, no disability to account for such symptomatology has been clinically identified and no medical professional has attributed the symptomatology to an underlying disability. Indeed, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability. The Board further finds that the weight of the competent evidence demonstrates that the Veteran's left knee disability is not related to service. In an August 2011 VA orthopedic medical opinion, the VA examiner reported a current diagnosis of left knee chondromalacia. The VA examiner opined that it was less likely than not that the Veteran's left knee disability was related to service, including as due to the left thigh contusion reported in service. The VA examiner reasoned that service records reflected that the left thigh injury resolved in service and the Veteran reported that he was back to full activities. The VA examiner further reasoned that in VA treatment records dated June 2005 and October 2007, the Veteran did not report any left knee symptoms. The VA examiner also opined that contusions are self-limiting injuries and that doctors are not certain what actually causes patellofemoral pain syndrome, but it is generally associated with overuse and repetitive stress. The weight of the competent evidence demonstrates no relationship between the Veteran's current left knee disability and his military service, including no credible evidence of continuity of symptomatology of left knee disability which would serve either as a nexus to service or as the factual basis for a medical nexus opinion. On the question of relationship of current left knee disability to service, the only probative nexus opinion on file, in August 2011, weighs against the claim. The August 2011 VA opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence. The VA examiner reviewed the claims file, including the Veteran's own reported histories and complaints, and fully articulated the opinion; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against a finding of relationship of left knee disability to service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for left thigh and left knee disabilities, 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. Furthermore, as the Veteran has not been service connected for a left thigh disability, service-connection for left knee disability on a secondary basis is barred as a matter of law. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426 (1994). Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in January 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. As to VA's duty to assist, 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). VA treatment records and service treatment records have been obtained, and any outstanding treatment records not before the Board. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis, 6 Vet. App. at 430. In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a left thigh disability is denied. Service connection for a left knee disability, to include as secondary to left thigh disability, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs