Citation Nr: 1306486 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-48 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from November 1952 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. This case was previously before the Board in August 2010, August 2011, and September 2012, wherein it was remanded for additional due process considerations and development. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's left knee disorder clearly and unmistakably preexisted service. 2. The Veteran's pre-existing left knee disorder clearly and unmistakably did not increase in severity during active service. CONCLUSIONS OF LAW 1. A left knee disorder clearly and unmistakably existed prior to entry into service. 38 U.S.C.A. §§ 1110 , 1111, 1113, 1132, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 2. The pre-existing left knee disability clearly and unmistakably was not aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1132, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159 , 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in January 2009 and March 2009, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims of entitlement to service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's service treatment records from his entire period of active duty service are unavailable. A February 2009 memo shows the National Personnel Records Center indicated the records are unavailable. In appeals where a Veteran's service treatment records are unavailable, there is a heightened obligation to assist an appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). In March 2009, the Veteran was informed the service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran subsequently indicated he had no records to submit. Nonetheless, the claims file contains reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claim. The Veteran was examined by VA in 2011 and 2012, in connection with his claim of entitlement to service connection. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. The examination reports contain all the findings needed to evaluate the Veteran's claim, including his history and evaluations. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). In rendering a decision on appeal, 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, supra, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Further, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. Moreover, "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). 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. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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); 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"). Analysis of Service Connection for a Left Knee Disorder The Veteran asserts that a left knee disability, which has resulted in a left total knee replacement, is related to his military service. He asserts that he had a preexisting left knee disorder that was aggravated by service. According to the Veteran's claim, he had cartilage removed from his left knee prior to his military service, which he asserts worsened due to his duties during service. In multiple statements, and at April 2011 and September 2012 VA examinations, the Veteran reported that his left knee was injured prior to service, that he underwent surgical treatment at that time, and that his duties as a cook in the military aggravated his left knee such that he required a total knee replacement after service; the Veteran reported that he did not seek treatment for his left knee in service. He has not alleged that he injured his knee during service. In the January 2009 service connection claim, the Veteran contended that he did not receive a service separation physical examination. In a February 2009 statement, the Veteran contends that his left knee was injured prior to service, but was aggravated by his duties in service. In a December 2009 statement, on VA Form 9, the Veteran contended that prior to service in 1950, due to a pre-service injury, the cartilage in his left knee was totally removed. He further contends the Army examined his knee upon entrance to service, and that he spent his time in service on his feet as a cook, either in the kitchen or in the field. The Veteran's DD Form 214 identifies his Military Occupation Specialty as "Cook." The Veteran does not allege, and a review of his official military documentation contained in his claims file does not otherwise indicate, that he engaged in combat against enemy forces as contemplated by VA regulations. His DD Form 214 does not reflect that he received any decorations or medals indicative of involvement in combat. There is no other sufficient indication of combat service, either. For these reasons, the Board finds that the Veteran did not "engage in combat." In this case, a preexisting left knee disorder was not noted at service entrance; therefore, the presumption of soundness at service entrance in 1952 attached. 38 U.S.C.A. § 1111. If a disorder was not noted on entering service, to overcome the presumption of soundness, the government must show clear and unmistakable evidence both the condition existed prior to service was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1111. After a review of all the evidence, the Board finds that the Veteran's left knee disorder clearly and unmistakably preexisted service. The Veteran had removal of left knee cartilage before service in 1950, due to an injury prior to his military service. The Veteran's own statements repeat that he had an injury to the left knee prior to service in 1950, and that he underwent surgical removal of all of the cartilage of the left knee at that time. The Veteran is competent to relate a pre-service history of injury, symptoms, treatment, and diagnosis. See Jandreau, supra. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). At an April 2011 VA examination, the Veteran reported that he first injured his knee playing football in 1950, necessitating a medial meniscectomy, and that he recovered well until he began his duties as a kitchen worker in service, but that he did not seek treatment for the pain. Following a review of the claims file and physical examination, the impression was total left knee replacement. In a July 2012 statement, the Veteran asserted that his left knee was asymptomatic until he entered service. The Board notes that the Veteran attempted to obtain treatment records from Riverside Community Hospital, where he asserts his left knee treatment occurred in 1950, but was informed that the records are unavailable. The September 2012 VA examiner opined that the Veteran's left knee disorder clearly and unmistakably preexisted service. Based on the evidence discussed, the Board finds clear and unmistakable evidence that a left knee disorder, namely an injury and cartilage removal, preexisted service, and were asymptomatic at entrance into service. The Board next finds that the Veteran's pre-existing left knee disorder clearly and unmistakably did not increase in severity during active service. In this case, the Board also finds that the evidence demonstrates that the preexisting left knee disability clearly and unmistakably was not aggravated by service. Although treatment records from the Veteran's period of active duty are unavailable, the Veteran's own statements indicate that the Veteran was not treated for his left knee during service; on the February 2009 National Archives and Records Administration Form 13055, for reconstruction of service medical data, the Veteran stated that he did not seek treatment in service for his left knee. The Veteran has only asserted that he had an increase in left knee pain during service, but he does not allege that he sustained an injury or disease of the left knee during service. The evidence also shows no continuous symptoms of left knee disorder after service, which supports the finding that the preexisting left knee disorder was not aggravated by service. Medical records submitted after the Veteran's January 2009 claim for benefits show that the first treatment for his left knee was in 1994, approximately forty years after service. Records from Kaiser Permanente indicate that, upon treatment in August 1994, the Veteran reported that he underwent a meniscectomy of the left knee in 1950, due to a football injury and that he now had a diagnosis of degenerative joint disease of the left knee; the Board observes that the Veteran only reported a five year history of knee pain at that time. In January 1998, the Veteran was treated by Rocky Mountain Orthopedics, wherein he report that underwent a medial meniscectomy of his left knee in 1950, and that he did well for approximately 20 years before developing progressive left knee pain. This weighs against findings of aggravation in service, as it weighs against increased symptomatology during service or continuous symptomatology after service. Thus, the Board finds, by clear and unmistakable evidence, that the Veteran's pre-existing left knee disorder did not undergo a permanent worsening beyond normal progression during the Veteran's active service. The April 2011 VA examiner opined that the Veteran's pre-existing left knee disorder was not aggravated by the Veteran's two years of military service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). The September 2012 VA examiner opined that the Veteran's left knee disorder clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. The September 2012 VA examiner explained that, even if, as the Veteran alleges, his left knee pain began during his service, the Veteran's over 30 years of work as a maintenance supervisor and a post-service on-the-job right knee injury were the more likely cause of the Veteran's left knee aggravation. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). The VA examiner relied upon the Veteran's reported post-service occupational duties, the 40 year gap between his service and his first complaints of left knee pain, and the Veteran's medical history in the years since service, and opined that, if the Veteran's underlying left knee disorder had worsened in service, versus just complaints of pain, the onset of left knee problems would have occurred prior to that which is shown in his post-service treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning, and threshold considerations include whether the person opining is suitably qualified and sufficiently informed). In finding no aggravation, the Board also places significant probative value on the absence of an injury or even an increase in complaints or treatment for his left knee disability during or immediately after service, the absence of complaints at service separation, and the thorough medical opinion on the aggravation question. This case is distinguishable from Horn v. Shinseki, 25 Vet. App. 231 (2012). In this case, the September 2012 VA examination report with opinions regarding preexistence and aggravation in service provides clear and unmistakable evidence, in the affirmative, that there was no aggravation in service, whereas in Horn the Court held that the absence of evidence of aggravation does not rise to the level of rebutting the presumption of aggravation. Although the Veteran is competent to report certain symptoms of a left knee disorder, during and after service, the Board finds that his reports of symptoms in service and continuous symptoms since service are inconsistent with his own, previously reported histories and other evidence of record, and are not credible. And he did not assert that this left knee disorder was related to active service until he filed his claim for benefits in 2009. In particular, inconsistent with his current assertion of in-service and post-service symptoms of a left knee disorder, when the Veteran sought treatment prior to his claim for service connection, the Veteran did not report a history of experiencing left knee symptoms during service or in the many years following service; when he first sought treatment in 1994, he only reported a five year history of complaints related to his left knee. Additionally, at no point in treatment prior to his 2009 claim did he make any assertions that his left knee disorder worsened during or as a result of his service; he made no assertion of continuous symptoms at that time, which strongly suggests that there was no pertinent left knee symptomatology at that time. The Board finds that the recent contentions of the Veteran, that his left knee disorder was aggravated by his duties in service, are not credible because their reports are inconsistent with the Veteran's own report of no treatment during service, the absence of complaints or treatment for nearly 40 years after service, and the Veteran's own histories made for treatment purposes prior to filing a claim for VA compensation. In his January 2009 claim for VA benefits, the Veteran claimed that he had left knee disorder which worsened during active service and continued since that time; however, treatment records since that time do not show any related complaints or diagnoses prior to 1994. Also, until the Veteran filed the claim for VA compensation, he did not assert an association between his left knee disorder and his service. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); 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"). Such evidence weighs against findings of chronic symptoms of a left knee disorder in service or continuous symptoms since service, which also weighs against a finding of permanent worsening during service. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. As indicated earlier, the Veteran did not make any complaints related to his left knee until August 1994, wherein he reported a five year history of knee pain. Similarly, there was no evidence of a related, chronic left knee disorder during or for years after service, including within a year of discharge from service; the Veteran had no left knee complaints until 1994. For these reasons, the Board finds that the Veteran's recent statements for compensation purposes that he had chronic symptoms during service and that he experienced continuous symptoms since service are outweighed by the other, more contemporaneous lay and medical evidence of record, and are not credible. See Caluza at 511 (1995); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). While the record reflects that the Veteran was diagnosed with degenerative joint disease of the left knee in 2002, to substantiate a claim of presumptive service connection for such disability as a chronic disease, there must be evidence that it was manifested to a compensable degree in the first post-service year. A thorough review of the record reflects no degenerative joint disease of the left knee in the first post-service year. Although the Veteran has alleged experiencing symptoms during the first post-service year, notably, as a layperson, he is not competent to diagnose degenerative joint disease as that disability is an insidious process identified by specialized diagnostic testing, such as x-rays. See Jandreau at 1377 (Fed. Cir. 2007). Moreover, as indicated above, such assertions and testimony of symptoms in service and continuously after service are not credible. Given that arthritis of the left knee was not demonstrated within the first post-service year, service connection for a left knee disorder on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. As the standard is clear and unmistakable evidence to rebut the presumption of sound condition at service entrance, the rule of resolving reasonable doubt in the Veteran's favor is not applicable in this case. ORDER Service connection for a left knee disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs