Citation Nr: 1305015 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-24 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from October 1953 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a left knee disability. A notice of disagreement was received in December 2009, a statement of the case (SOC) was issued in May 2010, and a substantive appeal was received in June 2010. The Veteran first filed a claim for a disability related to his left knee in February 1977. The RO issued a rating decision in June 1977 denying service connection. In June 2009, the Veteran filed a petition to reopen his claim for his left knee disability. The RO initially denied the Veteran's petition to reopen in September 2009. The Veteran filed a request for reconsideration in November 2009 and the RO issued a subsequent rating decision later that same month, granting the petition to reopen, but denying service connection. The Board granted the Veteran's petition to reopen his claim but remanded this case in August 2010. In February 2012, the Board again remanded this case for further development. This matter is now before the Board for the third time. As discussed below, the Board's instructions as to both the August 2010 and February 2012 remands have been substantially completed. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence reflects that the Veteran's current left knee disability was not present during service, was not manifest within one year of separation from service, and is not due to any incident of his active duty service. CONCLUSION OF LAW The Veteran's current left knee disability was not incurred or aggravated in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case. See 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, 3.326 (2012). The information contained in a pre-decisional July 2009 letter satisfied the duty to notify provisions, including regulations pertinent to the establishment of an effective date and disability rating. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records, that are still in existence, have been obtained. The Board acknowledges that several attempts were made to secure STRs from the National Personnel Records Center (NPRC). The NPRC responded that the records were not available and presumed destroyed in the St. Louis fire in 1973. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991) (where STRs have been destroyed or are unavailable, the Board has a heightened duty to provide an explanation of reasons or bases for its findings). In September 2009, the RO issued a Memorandum outlining its efforts to obtain the pertinent records from NPRC. The RO/AMC also made a "Formal Finding on the Unavailability of Treatment Records" in April 2011 and again in December 2012. The RO/AMC also attempted to obtain such records from the Office of the Surgeon General, but received negative responses from each. In addition, the RO/AMC informed the Veteran on several occasions from 2009 to 2012 of its unsuccessful attempts to obtain such records, requested that the Veteran provide any additional pertinent information or evidence, and informed the Veteran that it would proceed with adjudication of his claim if no further evidence was received. The Veteran was also informed by the RO in May 1977 that it was having difficulty locating his pertinent records. In a November 2012 letter, the Veteran indicated that he did not have the missing records and requested that his claim be adjudicated on the evidence of record. When a veteran's STRs are not available, VA's duty to assist and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule are heightened. See Moore (Howard) v. Derwinski, 1 Vet. App. 401, 404 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). "Full compliance with the [statutory duty to assist] also includes VA assistance in obtaining relevant records from private physicians when [the veteran] has provided concrete data as to time, place, and identity." Olson v. Principi, 480, 483 (1992). However, while the duty to assist is neither optional nor discretionary (see Littke, 1 Vet. App. at 92), the duty is not always a one-way street; nor is it a "blind alley." Olson, 3 Vet. App. at 483. "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). The duty to assist provisions of the VCAA have been met. The claims file contains reports of post-service medical treatment, and a January 2011 VA examination report. The examination was adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board finds that the AMC substantially complied with its August 2010 and February 2012 remand instructions. The RO/AMC was to afford the Veteran a VA examination and request service records from Fort Baker, California, Fort Brooke, Puerto Rico, the Office of the Surgeon General and the satellite clinic at Hospital de Damas in Ponce, Puerto Rico, and to associate any response to such request with the claims file. The clams file was to be forwarded to the VA examiner who was to conduct the VA examination in order for the examiner to render a medical opinion. The AMC attempted to obtain records from the above noted sources and the responses to these requests are associated with the claims file. The Veteran was notified of the unsuccessful attempts and has replied that he has no other records. Also, although no records were obtained related to the Veteran's in-service left knee injury, the claims file was forwarded to the VA examiner who rendered the January 2011 VA opinion. Under these circumstances, an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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 order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The absence of some or all of the Veteran's STRs does not obviate the need to have nexus evidence linking his disabilities to his military service. See Russo v. Brown, 9 Vet. App. 46 (1996); cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his diagnosed osteoarthritis of the left knee was caused by an injury he sustained while playing baseball in 1954 during service, and that his symptoms have persisted since then. Because the preponderance of the evidence shows that his disability is more likely caused by the natural aging process, his claim will be denied. The Veteran has been diagnosed with osteoarthritis of the left knee as well as status-post left total knee arthroplasty (TKA), satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. As a preliminary matter, the nexus requirement of a service connection claim may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Here, presumptive service connection is not warranted because the record does not show that arthritis manifested to a compensable degree by October 1956, i.e., within one year of the Veteran's separation from service. Id. The Veteran's September 1955 exit examination record (as noted above, no other STRs have been located) shows no clinical abnormality of his lower extremities upon his discharge from military service. In February 1977, the Veteran filed a claim for VA benefits related to his left knee. A VA examination was performed in April 1977. The Veteran reported injuring his left knee in 1954 while playing baseball, that x-rays were taken at that time, but no fracture was found, and he was given a light duty profile for 40 days. No STRs were available. The examination report shows that the Veteran complained of left knee weakness, pain and a clicking sound. However, x-rays noted only some irregularity of the intercondyleal prominence of the tibia, with no other significant abnormality. The examiner noted that the Veteran had knee flexion and extension from 0-140 degrees bilaterally and that he had normal aspect of both knees, with no edemas. The diagnoses listed in the examiner's report included high blood pressure and nasal pinguecula, but no disability associated with the left knee. In September 2007, the Veteran's private healthcare provider noted the Veteran's complaints that he had a long history of left knee problems, which began in 1954 while playing softball. The provider referred to a MRI of the left knee taken two years earlier, which showed no meniscal involvement, but that x-rays had shown degenerative changes in the left knee. The provider also noted the Veteran's complaints of instability in the left knee, and that due to pain, he used an assist device to ambulate. The record also notes the Veteran's frustration with his symptoms and his stated desire to proceed with surgery at that time. The provider recorded that the Veteran had knee flexion and extension from 0-110 degrees and diagnosed him with degenerative joint disease of the left knee. The Veteran underwent left TKA in October 2007. Additional records from the surgeon indicated that the Veteran's left knee had flexion and extension from extension of 0-90 degrees and was doing well. An August 2009 record noted that the Veteran was seeing his private physician for a follow-up primarily to complete a form he needed to submit to VA. The physician noted that the Veteran had done beautifully with the October 2007 left TKA and found him to have left knee flexion and extension from 0-120 degrees. The physician also examined the Veteran's right knee, which had flexion and extension from 0-100 degrees. The physician diagnosed the Veteran with degenerative joint disease of the right knee. A September 2009 record from the Veteran's private physician also states: The [Veteran] comes for a ruling concerning the VA and whether his injury from 1954 has anything to do with the onset of his left knee degenerative joint disease and subsequent left total knee arthroplasty two years ago. He reports that in 1954 he was playing softball. He slid into home and twisted his left knee. This was treated with physical therapy in Puerto Rico. He was out of duty for about a month but then returned to his regular duties and did fairly well with mild symptoms from 1955 until the 1970's when he ended up having physical therapy again. He has had no surgeries prior to his left total knee arthroplasty. Of note, his right knee reveals significant degenerative joint disease and his radiographs reveal significant degenerative joint disease, very similar to his left knee. After discussing this with the patient there is really no way that I can say that the injury in 1954 precipitated an event 53 years later resulting in a total knee, especially in light of the fact that he had fairly severe degenerative joint disease in the contralateral knee and the fact that he never had any surgery that would explain the onset of the arthritis of his knees. [emphasis added] The Veteran underwent a VA examination in January 2011. The examiner considered the Veteran's reports of left knee injury during service to symptoms since that time, as well as the 1977 VA examination report and the September 2009 opinion from the Veteran's private physician. The examiner opined that the Veteran's left knee disability was not caused by service. The examiner reasoned that the record is absent of documentation that would provide objective evidence supporting a nexus between the Veteran's left knee osteoarthritis and recent left TKA and the Veteran's reported left knee injury sustained in 1954. Further, there was no objective evidence of continuity of care identified in the record regarding the Veteran's left knee condition following discharge from active military service. There was also no objective evidence that the Veteran's left knee injury, which he reported during active duty, resulted in or caused his left knee condition years later. The examiner noted that the advanced osteoarthritis in the Veteran's right knee also supported a finding that the left knee disability is not due to service. Even though the Veteran reported experiencing symptoms initially in 1954, he stated to his own physician that he did fairly well with mild symptoms from 1955 until the 1970's when he ended up having physical therapy again. In addition, other than the 1977 VA examination, the Veteran has not identified, and the VA has not been able to obtain, any other records referencing treatment of his left knee prior to 2007. Even considering the destruction of the Veteran's STRs in the 1973 St. Louis fire, the Veteran stated that he only required physical therapy for one period during the 1970's. The Veteran has not identified any other records, VA or private, relevant to this appeal for the period from 1955 to 2007 (a period of 52 years). The Board finds that the preponderance of the evidence is against the Veteran's claim. Both the VA examiner and the Veteran's private physician addressed the Veteran's assertion of continuity of symptomatology since injuring his left knee in service. Both examinations are probative evidence in this case, and the Veteran has not provided any medical records that contradict either physician. Accordingly, the VA examiner's opinion and rationale are probative evidence against the claim. For the following reasons, the preponderance of the evidence is against the claim. The Veteran is competent to describe observable symptomatology, and the Board finds his assertion that he sustained an injury to his left knee while in service to be credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, his lay assertion that his current arthritis began in service and has continued to persist since then is outweighed by the findings of the VA examiner and his own private physician, who both attributed his degenerative joint disease, not to traumatic injury. The Veteran's lay assertion has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). Further, the Veteran did not file a claim for his left knee disability until February 1977 (22 years after he separated from service) and did not seek to reopen his claim until 2009 (32 years after he first filed his claim and 54 years after exiting service). See Shaw v. Principi, 3 Vet. App. 365 (1992) (holding that a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Lastly, the evidence of record does not reflect post-service treatment for the Veteran's left knee until 2007 when he sought the left TKA. Although not dispositive, a lengthy period without complaint or treatment can be considered as evidence that there has not been continuity of symptomatology and weighs against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a result, service connection based upon continuity of symptoms is not warranted. 38 C.F.R. § 3.303(b). Also, the nexus element of a service connection is not satisfied because the preponderance of the evidence is against his claim. Hickson, 12 Vet. App. at 253. Since the preponderance of the evidence is against the claim, the provisions regarding reasonable doubt are not applicable, and the Veteran's claim for service connection for left knee disability must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for left knee disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs