Citation Nr: 1306475 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-31 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for right knee disability to include as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from May 1951 to May 1954. This matter comes to the Board of Veterans Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied entitlement to service connection for a right knee disability. In May 2012, the Veteran, accompanied by his representative, testified at a hearing before the undersigned Veterans Law Judge at the local regional office. A transcript of the hearing is associated with claims file. In June 2012, the Board remanded this case for further evidentiary development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal except with regard to VA treatment records from the Palo Alto and Fresno VA Medical Centers obtained pursuant to the Board's June 2012 remand. The Supplemental Statement of the Case reflects that these records were reviewed by the originating agency prior to readjudicating the claim. 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 1. A right knee disability is not shown in service, and arthritis of the right knee is not shown within the initial post separation year. 2. A right knee disability, to include arthritis, is not attributable to service to include service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for right knee disability to include as secondary to service-connected left knee disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" 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 articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duty to notify. The record reflects that VA sent to the Veteran all required notice in a June 2008 letter, prior to the rating decision on appeal. Also, VA satisfied its duty to assist. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran. These records have been associated with the claims file. It is noted that there are no Social Security Administration records available as these records were ostensibly destroyed as the Veteran is over 72 years old. 38 U.S.C.A § 402 (West 2002). VA further afforded the Veteran an appropriate VA medical examination. Lastly, VA provided the Veteran a hearing on appeal. A copy of the transcript is associated with the claims file. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. It is noted that the Board previously reviewed the record, determined that additional development was necessary to include obtaining updated VA treatment records, non -VA health care records identified by the Veteran, and a VA medical opinion. Thereafter, VA conducted the requested actions. The Board has reviewed the development to include the examination report and finds substantial compliance with the requirements articulated in the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. II. Entitlement to Service Connection for Right Knee Disability The Veteran seeks service connection for right knee disability. He reports right knee strain in service. He further argued that right knee disability is secondary to service-connected left knee disability. The Veteran testified in May 2012 that he sustained a left knee injury in service and began to overcompensate with use of his right knee. He reported having strained his right knee in service as a result this overcompensation. The Veteran noted that he drove a truck in the military and had to use his right leg to work the clutch following his left knee surgery, putting more pressure on his right knee. He reported continuity of right knee symptoms since service. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. General Legal Criteria Initially, the Board notes the Veteran does not assert that his claimed right knee disorder is a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a right knee disability to include as secondary to service-connected left knee disability. A right knee disability is not shown in service, and arthritis of the right knee is not shown within the initial post separation year. Also, the evidence shows that a right knee disability, to include arthritis, is not attributable to service to include service-connected left knee disability. Service treatment records corroborate that the Veteran sustained a left knee injury and underwent surgery for that injury during late 1951. However, service treatment records reflect no right knee complaints or abnormal findings. Moreover, service separation examination dated in May 1954 reflects normal clinical evaluation of the lower extremities. Right knee disability is not shown in service and arthritis of the right knee is first shown many years after service in the 1990s. The Board has considered the Veteran's statements/testimony and accepts that he is competent to report his symptoms in service and since service. Layno v. Brown, 6 Vet. App. 465 (1994). See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). Also, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, to the extent that the Veteran suggests in-service right knee strain and continuity of symptoms since service, the Board finds that he is not credible in view of normal clinical evaluation of the lower extremities on service separation examination dated in May 1954, coupled with the absence of any documented right knee complaints until the 1990s and the fact that the Veteran did not report having right knee problems on his original VA disability compensation claim in May 1959 or a subsequently filed claim in June 1992. Also, the Veteran did not report right knee problems on VA examination in June 1959. It defies belief that the Veteran would not pursue compensation for a right knee disability while pursuing other disabilities he believes are due to service if his right knee had been a lingering problem dating to service. Likewise, it is not reasonable that the Veteran would have not have reported right knee problems during his June 1959 VA examination when discussing his left knee. As such, the Veteran's statements have diminished probative value. To the extent that the Veteran reports that his current disability is related to right knee strains in service or service-connected left knee disability, the Board finds that he is not competent to provide such an opinion. First, service treatment records reflect no diagnosis for strain. Thus, any opinion that his current right knee condition is related to in-service right knee strain lacks merit. Second, an etiologically opinion from the Veteran that his current right knee disability is related to left knee disability may not be rendered based on the Veteran's personal observation because he lacks any particular skill or expertise that would render his opinion competent in this regard. Jandreau, supra. See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (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; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). While the Veteran speculates that overuse of the right knee due to chronic left knee problems caused his current right knee disability, he has no medical training and his theory has not been confirmed by any medical professional. Therefore, the Board finds that the Veteran's opinion has no probative value. The record includes VA treatment records dated as early as 1993 and reports of VA examination dated in June 1959, May 1995, August 2008 and July 2012. VA treatment records show that the Veteran complained of right knee pain from overuse in November 1992. X-rays dated in 1995 reflect findings for arthritis of the knees. Recently dated VA treatment records reflect history of injury to the knees in the service and findings for arthritis. None of the VA treatment records reflect a medical nexus between the current right knee disability and service or service-connected left knee disability. Reports of VA examinations dated in 1959, 1995, and 2008 show no disability of the right knee although generalized joint complaints to include the knees were noted in 1995. Report of VA examination dated in 2008 reflects clinical findings for full range of right knee motion, including after repetitive motion tests. There was no pain, fatigue, weakness, or lack of endurance of the right knee following repetitive motion tests. Report of VA examination dated in July 2012 reflects that the Veteran has osteoarthritis of the right knee. By history, the Veteran sustained a left knee injury during basic training, received surgery, and was later found fit for duty. The Veteran worked for 19 months as a truck driver in Okinawa. He reported that he had to use his right leg to operate the double clutch on the truck and his belief that his current right knee disorder is attributable to this. The physician noted that the Veteran worked post service in heavy manual labor requiring lifting, bending, and kneeling-which the Veteran acknowledged took a toll on his knees. The physician opined that right knee disability was less likely than not due claimed in service injury or service-connected left knee disability. His rationale included the lack of documented right knee complaints in service and post service for many years, coupled with the Veteran's 35 years of heavy manual labor. The Board assigns greater probative value to the negative VA medical opinion. The Board finds that VA medical opinion is more probative as it was prepared by a skilled, neutral, medical physician after obtaining a history from the Veteran, reviewing the claims file, and conducting an appropriate physical evaluation. Also, it is probative because the physician has supported his conclusion with an analysis the Board can consider and weigh against other evidence in the record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, there is no favorable medical opinion in the record. The weight of the evidence is against the claim. There is no doubt to resolve. 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. ORDER Service connection for right knee disability, to include as secondary to left knee disability, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs