Citation Nr: 1305338 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 08-19 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran had active service in the Army from November 1967 to December 1970, and in the Marine Corps from April 1975 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2010, a hearing was held before the undersigned Veterans Law Judge (VLJ) sitting at the RO. The transcript is of record. The VLJ's actions at the hearing supplement notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) and regardless of whether the requirements of 38 C.F.R. § 3.103 (2012) are for application, they have been met. In August 2010 and April 2012, the listed issue was remanded for further development. Following substantial compliance with the remand directives, the case has since returned to the Board. The Virtual VA eFolder has been reviewed. Information in the eFolder shows that in September 2012, the RO granted service connection for atherosclerotic heart disease (60 percent from March 16, 2011); and increased the evaluation for posttraumatic stress disorder (PTSD) to 70 percent from March 16, 2012. There is no indication that the Veteran disagreed with this decision or otherwise perfected an appeal of these issues, and they are not for consideration by the Board at this time. In September 2012, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was deferred, and appears to be pending at the RO at this time. FINDINGS OF FACT 1. A chronic right knee disorder was not manifest during service. There is no evidence of right knee arthritis manifested to a compensable degree within one year following discharge from either of the Veteran's periods of active service. 2. The preponderance of the evidence is against finding that the Veteran currently has a right knee disability that is related to active military service or events therein. CONCLUSION OF LAW A right knee disability was not incurred or aggravated during active military service, nor may right knee arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in March 2004 and August 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete a service connection claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The claim was most recently readjudicated in the November 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains available service treatment records, service personnel records, VA medical records, and Social Security Administration (SSA) records. The Veteran was provided a VA examination in October 2010. In the April 2012 remand, the Board essentially found this examination inadequate and directed that additional examination and opinion be obtained. The Veteran most recently underwent a VA examination in May 2012. The examiner reviewed the claims folder and provided a medical opinion as requested. The Board finds no basis for requesting additional examination or opinion at this time. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. Factual Background Service treatment records from the Veteran's first period of service reflect that in January 1968, he was treated for right Achilles tendinitis and was noted to have knee tenderness assessed as myositis. On examination in November 1970 for discharge from active duty, the appellant denied knee trouble. The musculoskeletal system and lower extremities were evaluated as normal. The Veteran's service clinical file also contains extensive other data that appear to have been copied from microfilm and may include records from his second period of service, but are illegible and unable to be read. VA outpatient clinical records show that the Veteran underwent x-rays of the right knee in July 1994, which showed no acute bone or joint abnormalities. Clinical history was noted as history of traumatic injury complains of painful right knee. In February 2004, it was noted that there was right knee pain. The appellant related that he had chondromalacia in service. Private x-rays dated in February 2004 showed mild degenerative joint disease of the right knee. In an April 2004 statement, the Veteran reported that chondromalacia occurred in July or August 1977 and he was treated at the medical center at Camp Pendleton. In his June 2008 VA Form 9, the Veteran claimed that his right knee was injured in service and continues to bother him. At the May 2010 travel board hearing, the Veteran testified that he injured his right knee while he was stationed at Camp Pendleton and that he was treated on an outpatient basis for 2 weeks for chondromalacia. He denied problems with his knee prior to that date. He denied treatment for his right knee since service. He reported that his knee was to the point where it was uncomfortable, but not really painful. The Veteran underwent a VA examination in October 2010. At that time, he denied any specific injury or trauma, but stated that the knee started aching when he was in service and he went for therapy, to include heat and strengthening. He stated that the knee was better after that time, but now he has problems with both knees. He was unable to estimate the time period. Following examination, diagnosis was mild degenerative changes right knee. The Board observes that there was some confusion over whether the correct knee was x-rayed. Regardless, there was already private x-ray evidence of degenerative changes in the right knee. With regard to etiology of current right knee disability, the examiner stated that he could not resolve the issue without resort to mere speculation. In support of this statement, the examiner stated that based on the available evidence, he was unable to establish a good connection regarding the right knee. The joint was mentioned one time in 1968 and although the Veteran stated his knee was bad during his second period of service, these records were illegible. The Veteran most recently underwent a VA examination in May 2012. At that time, he reported that he did not have knee problems during his first tour of duty and that he did not receive treatment for knee issues in January 1968. He reported that during his second tour of duty, in 1978, he experienced right knee swelling and states that he was diagnosed with chondromalacia. He stated that the symptoms resolved following treatment with physical therapy and hot packs to the knee. He further stated that he had a stroke 2 years ago and could not remember when his current knee symptoms started again. X-rays showed mild degenerative changes without evidence for acute osseous abnormality. Following review of the claims folder and physical examination and diagnostic testing, the examiner provided a negative opinion. The Board observes that on the Disability Benefits Questionnaire form, the examiner selected the check box that states "the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition," instead of the check box that states "the claimed condition was less likely than not (less than 50 percent) probability incurred in or caused by the claimed in-service injury, event, or illness." In reviewing the rationale provided, however, it is clear that the examiner was addressing direct service connection. The Board notes that the Veteran has not specifically asserted entitlement to secondary service connection for his right knee and this theory is not reasonably raised by facts of the case. The examiner discussed the relevant medical records as well as the Veteran's contentions. The examiner essentially provided negative responses with regard to the following questions, which were specifically posed by the Board: (1) Does the Veteran have any residuals from right knee symptoms for which he was treated in January 1968 during his first period of service? (2) Does the Veteran have right knee chondromalacia and is there any relationship between any current disability of this nature and that reported during his second tour of duty? (3) In light of all of the available evidence, including the 1994 x-ray, does the Veteran have any arthritis of the right knee and is there a relationship between any current disability in this respect and inservice complaints, including chondromalacia? In support of her opinion, the examiner provided the following rationale: The right knee x-ray of 7/18/94 was normal and did not show any arthritis. X-rays of the right knee done on 10/25/10 and 5/15/2012 show mild degenerative changes. This is consistent with early arthritis seen with the usual aging process. There is lack of support for a relationship between the Veteran's current disability and the inservice claim of chondromalacia. Hot packs are not part of the standard treatment for chondromalacia and it is possible that he received hot packs for the treatment of some other condition instead of chondromalacia. Moreover the description of his symptoms and his physical examination are not consistent with a diagnosis of chondromalacia. Law and Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for certain chronic diseases, including arthritis, if manifested to a compensable degree within one year following discharge from active service. 38 C.F.R. §§ 3.307, 3.309(a). In order to establish entitlement to service connection for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Board acknowledges that the Veteran was awarded a Combat Infantryman Badge and Vietnam combat service is established. The Veteran, however, has not asserted that he injured his knee during combat and thus, 38 U.S.C.A. § 1154(b) (West 2002) is not for application. In addressing the merits of this claim, the Board first notes that there is no evidence of right knee arthritis manifested to a compensable degree within one year following discharge from either period of active military service. Service connection on a presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309(a). As noted, there is one mention of right knee tenderness in the Veteran's first period of service and records from his second period of service are illegible. Nonetheless, in the April 2012 remand, the Board indicated that it accepted that the Veteran sustained a right knee injury during his first period of service and accepted his report that he was treated for chondromalacia during his second tour of duty. Thus, an in-service injury or event is established. In determining whether there was continuity of symptoms so as to establish a nexus to service, the Board acknowledges that the Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see Clyburn v. West., 12 Vet. App. 296, 301 (1999) (Veteran is competent to testify regarding continuous knee pain since service). "Competency" differs from "credibility" as well as the weight given to different evidence. Significantly, "competency" is a legal concept determining whether testimony (i.e., the Veteran's lay statements) may be heard and considered, while "credibility" is a factual determination going to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). In determining the weight to be assigned to evidence, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In his June 2008 Form 9, the Veteran claimed that he injured his right knee in service and it continues to both him. A liberal reading of this statement suggests the Veteran is reporting continuity of symptomatology since service. While the Board has considered the Veteran's reported history, it does not find his lay assertions sufficiently credible so as to establish continuing symptoms. With regard to the initial period of service, any right knee problems appear to have been acute and transitory and resolved without residuals. That is, the Veteran's lower extremities were reported as normal on separation in November 1970 and he specifically denied knee problems at that time. Following the Veteran's second period of service, the Board notes that there is an absence of documented complaints or treatment related to the right knee for many years. This weighs against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran has also provided some inconsistent statements regarding the onset and course of any current right knee disability. For example, undated paperwork completed in connection with his Social Security Claim notes various injuries, including the right knee. The Veteran indicated that his conditions first bothered him in 2001 and that he became unable to work in 2003. He further noted that "[t]he onset of my injuries were gradual." At the October 2010 and May 2012 examinations, the Veteran indicated that his right knee problems were better or resolved following outpatient treatment at Camp Pendleton. He was unable to provide information as to when his symptoms restarted. In addressing whether any current right knee disability is related to service or events therein, the Board has also considered the medical opinions of record. As discussed, the October 2010 examiner indicated he could not provide an opinion without resort to speculation. This examination is not considered probative as to medical nexus. The May 2012 examiner, however, provided a negative etiology opinion. This examination was based on a review of the claims folder, to include the Veteran's reported history, and the opinion provided was supported by adequate rationale. The Board finds this opinion highly probative. The Board acknowledges the Veteran's contentions that his current right knee disability is related to his in-service complaints. Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis of right knee arthritis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for right knee arthritis. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). We also note that arthritis is not subject to lay observation. Therefore, a Layno exception is not applicable. Furthermore, the lay evidence in this case did not support a later diagnosis by a medical professional. See, Jandreau v. Nicholson, 492 F3d 1372 (2007). Although he reported an in-service (contemporaneous) diagnosis, there is no proof that he has had post-service chondromalacia. Accordingly, this lay evidence is not probative as to medical nexus. The Board observes that the Veteran is not a physician and his personal beliefs do not outweigh the detailed VA opinion as set forth above. In summary, the preponderance of the evidence is against finding that the Veteran currently has a right knee disability that is related to active military service or events therein. The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Service connection for a right knee disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs