Citation Nr: 1306089 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 05-16 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in March 2012 for further development. The issue of service connection for boils of the thighs which was on appeal at that time has since been granted by the RO in October 2012. Accordingly, that issue is no longer on appeal. The Veteran presented testimony at a Board hearing in March 2008, and a transcript of the hearing is associated with his claims folder. FINDING OF FACT The Veteran current right and left knee disorders were not manifest in service and are unrelated to service. Arthritis of either knee was not manifest to a degree of 10 percent within one year of separation. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for left knee disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2004. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran a March 2006 correspondence that fully complied with Dingess. VA also has a duty to assist a claimant under the VCAA. VA has obtained service and all available relevant VA treatment records; assisted the Veteran in obtaining evidence; adequately examined the Veteran for bilateral knee disability in April 2012; and afforded the Veteran the opportunity to give testimony before the Board. The examiner in April 2012 reviewed the Veteran's claims folder for relevant evidence, physically evaluated the Veteran, and cited reasons for his medical opinions in light of the evidence. This examination was therefore adequate. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's March 2012 remand by examining the Veteran as required and readjudicating his claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that 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). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Service treatment records reveal that during service in July 1977, on follow-up for back pain, it was reported that the Veteran had been to the physical therapy clinic. He complained of left knee pain. On service discharge examination in April 1979, he reported having or having had a trick or locked knee. His knees were found to be normal at that time. In the years immediately post-service, the Veteran filed claims for other disabilities, but not for knee disabilities. At the time of VA examinations in February 1980, he made no complaints regarding his knees and no knee problems were found. He had no limp, ran in place in a normal manner, and squatted well without difficulty. All exercises were readily performed with no discomfort alleged or apparent. On first time orthopedic evaluation at the Temple, Texas VA in September 1986, he complained of low back pain and radicular pain into his right leg. No complaints were lodged regarding his knees, and there were no motor signs. The Veteran was treated for right greater than left knee pain in September 2003. In November 2003, it was reported that a recent MRI had revealed right medial meniscus damage. On VA evaluation in April 2004, he reported that over the past few years, his knees had been giving him more problems. He stated that in service, he had injured his right knee. Thereafter, he had been a construction worker, but for the last year, he had been unable to work due to right knee pain. X-rays that day showed very mild medial compartment degenerative joint disease. He was felt to have a possible medial meniscus tear. On VA examination in October 2004, the Veteran reported that he injured both knees working on tanks in service. He fell onto both knees at one time, slipping on grease that was on the floor. He had treatment with ice packs and physical therapy. After examination, the diagnosis was right knee internal derangement and chondromalacia. During the Veteran's hearing before the undersigned Veterans Law Judge in March 2008, he testified that he felt that his current knee disorders were related to his being hurt in service when unloading Howitzer shells from an ammunition truck. When he was unloading ammunition in 1977, the driver moved the truck, and the Veteran slipped while on the truck and fell off its back end onto the ground. Then, 90-pound projectiles fell on top of him, and struck him in the legs and knees. After this, he went to sick call and they took X-rays of his knees and iced them down and gave him physical therapy. On VA evaluation in July 2008, the Veteran reported chronic right knee pain and he denied any type of trauma to his knee. On VA evaluation in December 2008, the Veteran reported having an aching right knee since 1978. On VA examination in March 2009, the Veteran stated that he injured both knees while unloading missiles from a truck which lurched, and the projectiles hit his knees. He stayed in the field, and later X-rays revealed no fracture. Right greater than left chondromalacia patella was diagnosed. The examiner stated that he could not render a medical nexus opinion without reporting to speculation because the service treatment records had limited entries regarding left knee pain with inadequate histories and medical examinations. On VA examination in October 2010, the Veteran reported that his injured his knees in 1976 or 1977 when he fell off a truck and hit both knees. He stated that he developed pain and swelling and was seen several times by medics, and was given conservative treatment. He stated that he continued with some pain in his knees while in service, and that after discharge, he had had persistent pain in his knees which had been progressive and daily. An November 2003 MRI was noted to have shown a probable meniscal tear and chondromalacia, and X-rays from 2008 showed mild sharpening of the tibial spine with preserved joint spaces and irregularity of the left patella. After examination by the examiner, the impressions were right knee medial meniscus tear and chondromalacia, and left knee chondromalacia. Regarding the question of relationship to service, on review of the claims folder and military medical records, the examiner could find no history of treatment for any knee condition. Therefore, he concluded that it would be speculation to attribute the Veteran's knee problem to service. The Board remanded the case to the RO in March 2012 for a better examination, as service treatment records had shown left knee treatment and knee symptomatology. At the time of the examination, which was in April 2012, the Veteran indicated that he had worked full time in food service as a chef and waiter until 2004, and had had to leave that position as the prolonged walking and standing aggravated multiple chronic musculoskeletal pain conditions. The Veteran reported that in service, he had been treated conservatively including with physical therapy, limited weightbearing, and limited duty, and that he was then returned to full duty. He indicated that he had experienced chronic intermittent progressively worsening mechanical bilateral knee pain since the in-service incident. After service, he had been treated conservatively as an outpatient, including with physical therapy and interarticular corticosteroid injections. The examiner reported the same diagnoses as found on VA examination in 2010. The examiner found that it was less likely than not that the Veteran's current knee disorders were incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that review of the service treatment records revealed only a single outpatient treatment note dated in June 1977 documenting complaints of left knee pain after falling off of a truck. There was no further documentation of any subsequent evaluation or treatment of left knee pain. The examiner felt that it was more likely than not that the Veteran's current bilateral knee conditions were due to chronic degenerative changes associated with aging. Based on the evidence, the Board concludes that service connection is not warranted for right or left knee disability. No right knee disease, injury, treatment, or diagnosis is shown in service, only one instance of left knee pain, without a diagnosis, is shown in service, in 1977, about 2 years before service discharge; and the preponderance of the evidence indicates that the Veteran's current right and left knee disabilities are unrelated to service. This was the opinion of the VA examiner in 2012 who considered the evidence in the Veteran's claims folder, including his service treatment records. Moreover, arthritis of the Veteran's knees was not manifest to a degree of 10 percent within one year of separation. Instead, it was first shown many years after service. The Board acknowledges the Veteran's testimony suggesting a link between his current knee disabilities and inservice injury. However, to the extent he is attempting to show a continuity of symptomatology from service, the Board finds the Veteran's assertions not credible. His current statements regarding symptoms since service are inconsistent with his actions after service in failing to file knee disability claims at the times he filed for VA benefits based on other claims. If the Veteran in fact believed that he was suffering knee symptoms related to service, it is reasonable to believe he would have filed knee disability claims when he filed other claims. Moreover, post-service medical records do not reflect any pertinent complaints by the Veteran when he had the opportunity to do so. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for right knee disability is not warranted. Service connection for left knee disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs