Citation Nr: 1305643 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 02-08 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from January to August 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In January 2004, the Board remanded the case for further development. In July 2006, the Board issued a decision that, inter alia, denied service connection for a bilateral knee disability. The Veteran thereupon submitted an appeal to the U.S. Court of Appeals for Veterans Claims (Court). In August 2008, the Court issued an order granting a joint motion of the parties to vacate the Board's decision in regard to the issue of service connection for bilateral knee disability and returned the case to the Board for action in compliance with the joint motion. In February 2009, May 2011, and December 2011, the Board remanded the case for further development. The file has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. A left knee disorder was not present in service and is not etiologically related to service. 2. A right knee disorder was not present in service, is not etiologically related to service, and was not caused or permanently worsened by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection of a left knee disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection of a right knee disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant notice by letters dated in March 2001, March 2004, March 2005, and March 2009. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained a probative medical opinion as to the etiology of the knee disorders, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decisions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will address the merits of the claims. Service Connection The Veteran contends that he has a bilateral knee disorder that resulted from a fall in service, to include the fall that caused his service-connected cervical spine disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The service treatment records do not show any complaint or abnormal finding related to either knee, and the report of the July 1992 separation examination reflects normal clinical findings for the lower extremities. June 1993 VA examination records reflect the Veteran's histories of injury during basic training which resulted in neck and left arm symptoms. The Veteran did not report any past or current symptoms or injury involving the knees. A September 1995 VA examination record reflects that the Veteran reported a history of injuring his left knee in 1992, after falling on it. The Veteran explained that the fall resulted in a wound which was cleaned and treated with super glue. He reported experiencing pain and stiffness in the knee since that time. The Veteran provided a distinct history of injury of the neck and shoulder, which suggests the injury of the left knee was the result of a different fall. The Veteran did not report that the injury of the left knee occurred during service, though he did report that the injury of the shoulder and neck occurred during service. He denied any complaints regarding the other joints. Examination of the knees revealed no deformities or muscular atrophy. There was appropriate alignment, the hollows around the patellae were normal, and range of motion was from 0 to 120 degrees. No disorder was diagnosed. A July 2001 VA treatment record reflects the Veteran's history of injuries of the cervical spine, left shoulder, and neck during service as a result of falling down an embankment during training. The Veteran did not report any symptoms or injury of either knee as a result of this fall. An August 2001 VA treatment record reflects the Veteran's history of pain in the front and back of the left knee which he attributed to injury in 1992, incurred after he slipped and fell down a hill. The Veteran reported pain in the back of the knee since the injury. He also reported locking and occasional giving out. Examination revealed painful left rotation and painful left and right flexion. There was tenderness over the left patellar tendon. The Veteran was assessed with internal derangement of the knee. X-ray images of the left knee were normal. A July 2004 VA treatment record reflects the Veteran's three year history of pain in his knees. An August 2004 private treatment record indicates that the Veteran had pain and swelling in the knees. A July 2005 VA treatment record reflects the Veterans' history that his left knee swelled at night and gave out at times. An August 2006 VA treatment record indicates that he Veteran's knees were giving him "problems." Examination revealed bilateral crepitus, chronic mild edema on the left patella and an old surgical scar on the left knee. A March 2008 private treatment record reflects the Veteran's history of bilateral knee pain, predominantly in the left knee, for almost ten years. The Veteran reported that he injured the knees at the time of the in-service injury of his neck and shoulder and that he was seen by a military doctor during service. X-ray images were normal. Magnetic resonance imaging (MRI) of the left knee revealed a small Baker's cyst and small joint fluid with prominence of the medial patella plica. See First State Orthopedics records. In March 2009, the Veteran submitted a statement in which he alleged injuring both knees during service. He indicated that he received treatment from a corpsman for the knees after each injury. He explained that he tore something in his left knee in May 1992 and then reinjured the left knee and injured the right knee in June 1992, which made it "near impossible" for him to walk or stand. He explained that he did not seek additional treatment because he "did not want to seem weak." A March 2009 private treatment record reflects the Veteran's history of bilateral knee pain, worse on the left. An April 2009 statement from a private physician reflects the physician's recorded history that the Veteran "was found to develop knee pain" "after he completed" his military service. The physician reported that the Veteran's "physical capability ha[d] been compromised after the trauma he received during service." See Singh statement. An April 2009 VA treatment record reflects the Veteran's history of bilateral knee problems. The Veteran attributed his left knee problems to an injury during service. He reported that he jumped from a vehicle and landed in a squat, which caused him to hit his chin on his left knee. He explained that he was treated "in the field" and that he had intermittent pain, swelling, popping, clicking, numbness, and giving way since that time. He explained that he had begun to notice right knee symptoms which his personal trainer believed were from compensating for the left knee. After examination, the Veteran was assessed with longstanding left knee problems consistent with torn meniscus and new onset right knee symptoms consistent with patellofemoral pain syndrome. A July 2009 VA examination record reflects a diagnosis of meniscal tear. The examiner opined that it was less likely than not that the meniscal tear was secondary to service. The examiner explained that there was no documented knee injury during service. The examiner added that there were post-service findings of possible meniscal tear, dating in the early 2000s. A June 2011 VA examination record reflects the Veteran's history of injuring his knees after falling during an exercise. He denied receiving treatment for the knees. The examiner noted that in 1995 the Veteran reported injuring his left knee in 1992. The examiner reported that he was unable to locate any service records documenting knee injuries and chronic complaints. The examiner explained that without the "chronic documentation" he was unable to say without resorting to speculation if the knee disorders are related to service. Another examination was conducted in November 2011. At that time, the Veteran reported being treated in the field for the in-service injury of the knees. The examiner reported that he was not able to locate any service records documenting knee injuries or treatment. The examiner believed it was less likely as not that the knee disorders onset in service or were otherwise related to the in-service injuries, as described by the Veteran. Furthermore, the examiner believed it was not at least as likely as not that the disorders were caused or worsened by the service-connected cervical spine or left shoulder disabilities. The examiner provided an addendum in July 2012. The examiner reiterated that it was less likely than not that the claimed knee conditions were incurred in or caused by service because there was no documentation of a knee injury in the service records. Another opinion was obtained in September 2012. The author of the opinion, a physician, opined that the Veteran's knee disorders were not at least as likely as not incurred in or caused by service or caused or aggravated by the service-connected cervical or left shoulder disabilities. The author noted that the Veteran was treated for a fall in May 1992. He further noted that the associated treatment records only reflected treatment for cervical strain, however, and that there were no service treatment records related to knee injury or pain. The author explained that degenerative joint disease was often found to affect multiple joints of the body and that there was "no clear association, beyond a genetic predisposition to early/premature degenerative joint disease or an injury affecting multiple joints, which is lacking in the Veteran's case, to connect the cervical and shoulder conditions to the bilateral knee conditions." Left Knee Disorder Service connection is not warranted for a left knee disorder because the preponderance of the evidence shows that no left disorder was present in service and that no current left knee disorder is related to service. The service treatment and examination records reflect no findings or histories suggestive of a chronic left knee disorder, and the first evidence suggestive of a left knee disorder dates in 1995, approximately three years after separation from service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that the Veteran initially reported a history of left knee symptoms since an injury in 1992 and now indicates that the aforementioned injury occurred during service. Although the Veteran is competent to report this history, the Board finds the histories of injury in service and associated symptoms during and since service as a result of fall are not credible. The Board acknowledges that the Board, in its May 2011 remand, determined that the Veteran's history of an undocumented knee injury was "credible." The Board provided no explanation for this determination, however, and based on the reasons set out below, the Board finds the Veteran is not credible. Initially, the Board finds the history that the left knee was injured as a result of the in-service fall which injured the cervical spine and left shoulder is not credible based on the Veteran's failure to provide a history of injury to the left knee as a result of that fall prior to 2008, though he was asked about that fall and received treatment and underwent examination for the residuals of that fall during that time, the 1995 treatment record which indicates that the Veteran distinguished between the fall that injured the left knee and the fall that injured the shoulder and cervical spine, and the histories provided earlier than 1995 which indicated that the injuries to the neck and shoulder were sustained after falling backwards. The Board also finds the left knee was not injured during service. Although the Veteran is competent to report that he injured the left knee during service, the Board finds this history is not credible, and thus not probative, in light of the absence of such a history prior to 2008, though the Veteran received treatment, and the differing accounts as to the nature and cause of the reported injury, to include whether it resulted in treatment and whether it was caused by a fall or a jump. The Board acknowledges that a 1995 treatment record reflects a history of injury as a result of a fall in 1992. The 1995 record does not indicate that the fall occurred in service, however, and the Board finds the absence of a specific history that the fall occurred during service is highly probative evidence that the fall occurred after separation based on the Veteran's specific history that the other fall (the one which resulted in injury to the cervical spine and shoulder) occurred during service. Thus, although the Board finds the Veteran's 1995 history of left knee symptoms since a 1992 fall is competent and credible, the Board finds the history is probative evidence of a post-service onset of the symptoms. Additionally, the competent and probative evidence does not establish a link between the left knee disorder and service. Although the record includes a positive nexus opinion from a private physician, the opinion lacks probative value because the physician provided no rationale for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In contrast, the Board finds the September 2012 VA examiner's opinion is probative as it is accompanied by a detailed rationale. In sum, the Board finds a chronic left knee disorder was not present in service and is not causally related to service. As such, service connection is not warranted. Right Knee Disorder The probative evidence does not suggest that a right knee disorder had its onset in service or is causally related to service. The service treatment and examination records reflect no findings or histories suggestive of a chronic right knee disorder, and the first evidence suggestive of a disorder is dated in 2001, when the Veteran was found to have painful flexion, approximately nine years after separation from service. See Maxson, 230 F.3rd. at 1333. The Board acknowledges that the Veteran now reports right knee symptoms during and since service and right knee injury during service. Although the Veteran is competent to report this history, the Board finds it is not credible in light of the absence of any complaint pertaining to the right knee prior to 2004 and the absence of a history of right knee injury prior to 2008, though the Veteran received frequent treatment for other orthopedic injuries and symptoms (to include those affecting the left knee), and the initial history (provided in 2004) of right knee symptoms since only 2001. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility). Additionally, the competent and probative evidence does not establish a link between the right knee disorder and service. Although the record includes a positive nexus opinion from a private physician, the opinion lacks probative value because the physician provided no rationale for the opinion. In contrast, the Board finds the September 2012 VA examiner's opinion is probative as it is accompanied by a detailed rationale. See Nieves-Rodriguez, 22 Vet. App. at 304. The evidence also does not suggest that the right knee disorder is secondary to a service-connected disability. The Board acknowledges that the Veteran was told that his right knee disorder is secondary to his left knee disorder. Service connection is not in effect for the left knee disorder, however; as such, service connection is not warranted on that basis. In sum, the Board finds a chronic right knee disorder was not present in service, is not causally related to service, and was not caused or aggravated by a service-connected disability. As such, service connection is not warranted. ORDER Service connection for a left knee disorder is denied. Service connection for a right knee disorder is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs