Citation Nr: 1306922	
Decision Date: 02/28/13    Archive Date: 03/01/13	

DOCKET NO.  00-15 922	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a left knee disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel



INTRODUCTION

The Veteran served on active duty from August 1970 to August 1974.

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's claim of entitlement to service connection for a left knee disorder. 

The Board issued a decision in September 2004 also denying this claim, and the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  An attorney, Mr. Louis J. George, Esquire, of National Veterans Legal Services, represented the Veteran in that appeal to the Court.  VA's Office of General Counsel represented the Secretary of the agency.  The Court issued a single-judge Order in December 2006 vacating the Board's decision and remanding the claim for further development and readjudication.  The Court subsequently entered judgment in January 2007 and returned the file to the Board for compliance with the directives specified.  The American Legion, instead of an attorney, resumed its representation of the Veteran before VA.

In July 2007, to comply with the Court's Order, the Board in turn remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC.  After receiving the file back from remand, the Board issued another decision in November 2009 again denying the claim, and the Veteran again appealed to the Court.  The Court issued another Order in December 2010 again vacating the Board's decision and again remanding the claim to the Board for further development and readjudication in compliance with the Court's Order.  The Board, in turn, again remanded the claim to the RO via the AMC in June 2011 to comply with the mandates of this additional Order.  The AMC completed this additional development, but continued to deny the claim in a November 2011 Supplemental Statement of the Case (SSOC), so returned the file to the Board for further appellate consideration of this claim.

The Board subsequently issued another decision in February 2012 again denying the claim, and the Veteran again appealed to the Court.  This time, however, he was unrepresented in his appeal to the Court, so a pro se appellant.

In June 2012 VA's Office of General Counsel, representing the Secretary of VA in that appeal to the Court, filed an unopposed, unilateral, motion asking the Court to again vacate the Board's decision denying the claim and to again remand the claim to the Board for further action consistent with that motion.  The Court granted that motion in a July 2012 Order, so this claim is again before the Board.


FINDINGS OF FACT

1.  The Veteran began serving on active duty in the military in August 1970 and some 3 months later, in November 1970, injured his left knee during physical training.

2.  When evaluated following that injury, there were objective indications of swelling and discoloration of this knee, but physical examination of this knee was normal, so ultimately unremarkable; the evaluating physician suspected the Veteran had sustained a stress fracture.

3.  The Veteran had no further complaints concerning this knee for the remainder of his service, however, which lasted nearly 4 more years until August 1974, including when examined for separation from service.  There also were no other objective findings referable to this knee for the remainder of his service.

4.  As well, there was no indication of degenerative changes or arthritis in this knee within one year of his separation from service, meaning by August 1975, certainly not to the required minimum compensable degree of at least 10-percent disabling, or even for many ensuing years.

5.  He first claimed entitlement to service connection for a left knee disorder, as a residual of that injury in service, in January 1998.

6.  When initially filing that claim in January 1998, he indicated he only had been treated for his left knee injury since 1993, so only during the then past 5 or so years; he did not mention or otherwise refer to any prior treatment for his knee injury either before, during, or even at any time since his service, certainly not on a frequent, recurring or ongoing basis as he and others now allege.

7.  The weight of the medical and other evidence in the file indicates his current left knee disorder is unrelated to his military service - and, in particular, to that injury in service.

8.  His lay statements, as well as those of the others who have commented on his behalf, alleging he has experienced continuous symptoms (i.e., continuity of symptomatology) since that injury in service, although competent, are not also credible, so not ultimately probative to alternatively establish the required nexus or linkage between his current left knee disorder and his military service.


CONCLUSION OF LAW

His current left knee disorder is not the result of disease, injury or event incurred in or aggravated by his active military service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the unilateral, unopposed, motion that VA's Office of General Counsel filed in June 2012 on behalf of the Secretary, which the Court in turn granted in its July 2012 Order vacating the Board's prior February 2012 decision, the Office of General Counsel cited the Board's failure in that decision to make an express determination regarding dispositive lay evidence of record.  By law, the Board must make an express credibility finding regarding lay evidence.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Vacating of the Board's prior decision and remanding of this claim therefore was required because, in its prior decision, the Board had conceded that, "if the Veteran's and other laypeople's versions of the events that transpired in service and thereafter are found credible, the Veteran is entitled to service connection for his current left knee disorder."  So, added the Office of General Counsel, the Veteran resultantly was prejudiced by that omission in not making this required credibility finding regarding lay evidence in violation of the applicable law because the Board had acknowledged that, if the lay statements were found to be credible, this necessarily would result in the granting of his claim.

The Office General Counsel's motion only mentioned the Board's need to address expressly whether this lay evidence in question is credible.  So, in this supplemental decision, the Board is making this necessary credibility finding.  Since, however, none of the Board's other findings or conclusions were called into question, for ease of discussion the Board is merely reiterating the prior findings and conclusions that were not disturbed, the duty-to-notify-and-assist analysis, as well as the other reporting of evidence, listing of applicable statutes, regulations, and case law, etc.  Thus, much of the prior decision is merely restated in this additional decision, verbatim, albeit with additional language here and there and the discussion needed to make the necessary credibility finding regarding the lay evidence.

Just as before, in the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate review. The Board will then address this claim on its merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision.

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, including as concerning the lay evidence now brought to the forefront, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2011). 

To this end, VA must inform the claimant of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).

These VCAA 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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So ideally, if, as here, the claim is for service connection, the notice should include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is eventually granted.  Id., at 486.

Also, ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a Statement of the Case (SOC) or Supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis.  Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim.

The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because:  (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law.  Sanders, 487 F. 3d at 889.  Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial."  Vazquez-Flores, 22 Vet. App. at 46.  See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). 

In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in May 2002, October 2003, March 2007 and most recently in September 2007 (following and as a result of the Board's July 2007 remand).  The letters, especially in combination, informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence.  Note also that the September 2007 letter complied with Dingess by as well discussing the "downstream" disability rating and effective date elements of the claim.  And of equal or even greater significance, after providing that additional Dingess notice as directed to in the Board's July 2007 remand, the AMC went back and readjudicated the claim in the July 2009 SSOC - including considering the additional evidence received in response to that additional notice.  See again Mayfield IV and Prickett, supra.  So any arguable timing defect in the provision of that additional notice has been rectified ("cured").

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  In furtherance of this obligation, the RO/AMC obtained his service treatment records (STRs), VA treatment records, private medical records, and his and other lay statements in support of his claim.  In addition, the RO and AMC arranged for VA compensation examinations in April 1998, November 2000, January 2004, and June 2009 for medical nexus opinions concerning the cause of his left knee disorder - including, in particular, in terms of whether it is attributable to his military service and, even more specifically, the injury in service he cites as the source of it.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4).

But in citing the deficiencies in the Board's November 2009 decision, and resultant reason for vacating that decision, the Court noted the Board had relied on the opinion obtained in June 2009 in again denying the claim.  The Court determined that opinion needed reconciliation and further clarification, especially in light of an October 2000 X-ray of the Veteran's left knee showing "increased sclerosis in the proximal tibia which is possibly related to an old stress fracture."  The Court further indicated this VA examiner needed to consider the "swelling and discoloration" of this knee that had been noted in service, when the Veteran was treated for the injury to this knee in service, albeit not resulting in an abnormal physical examination of this knee at that time.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a 
service-connection claim, even if not statutorily obligated to, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  And see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one).

The need for this additional medical comment by this VA examiner prompted the Board's June 2011 remand of the claim.

This VA examiner provided this additional comment in August 2011, and this additional comment is responsive to the questions posed in the Board's June 2011 remand and in compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating a Veteran is entitled to compliance with remand directives as a matter of law).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (alternatively discussing when "substantial", though not "exact" or "total", compliance will suffice).


When this VA physician (an orthopedic surgeon) commented on the X-ray, he acknowledged that an area of increased scoliosis can occur from an old stress fracture.  But he added that it also can occur from increased stresses on the tibia related to developing degenerative arthritis, which apparently is why he said that "[t]here is no way to determine on the basis of single x-ray the exact etiology."

And regarding the notations of "swelling and discoloration" in service, the only additional comment this VA examiner could make is in the eyes of the examiner in 1970 (who evaluated the Veteran for his injury in service).  The physical findings, observed this VA examiner, were consistent with stress fracture, and the area of swelling and discoloration was located in the proximal third of the tibia, but the knee examination itself was listed as normal.  Therefore, added this VA examiner, it appears that based on the examination by the provider in 1970, the knee joint was not injured.  This commenting VA examiner concluded by positing two possibilities for either granting or denying the claim, which in essence turn instead on assessing the Veteran's credibility in relation to the objective medical findings.  And this ultimately is the Board's responsibility, not this VA examiner's.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court noted it was unclear whether the examiners were unable to provide the requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.  But the Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").

The Court in Jones held that, in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. 

Here, this is indeed the case since, when providing his additional comment in August 2011, this VA examiner concluded by saying "[t]here is no information that would be gained by reexamination of the veteran."  This VA examiner also previously had indicated this when, at the conclusion of his prior June 2009 opinion, he indicated "I do not see anything to be gained by another C&P examination unless there was some other objective data made available."

The Veteran therefore has received all required notice and assistance with his claim, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice or assistance deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the claimant).

During the months since the Court vacated the Board's prior decision for, as mentioned, failing to address explicitly whether supporting lay evidence is credible, the Veteran has submitted an additional statement and evidence in December 2012 that he considers necessary and important in his case.  He acknowledged receipt of the Board's 90-day letter in August 2012 allowing for the submission of this additional evidence and argument, and on the response form the Board had enclosed with that letter, he waived his right to have the RO initially consider this additional evidence, preferring instead to have the Board consider it in the first instance, so the Board has this authority.  See 38 C.F.R. § 20.1304.  He added that previous letters and documentation that he had submitted along with the enclosure he is now submitting (referring to a contemporaneously dated December 2012 statement from L.K., former Office Manager from 1970 through 1983 for Dr. Z, an orthopedic surgeon), shows, according to the Veteran, that his left knee has been and always will be a problem ever since it was injured during his U. S. Marines Corps (U.S.M.C.) recruit training at Parris Island, South Carolina.  He therefore wanted this enclosure (L.K.'s December 2012 statement) added to the review of his case and to his records.  Ironically, partly because of the submission of this December 2012 statement from L.K., and in particular what it specifically alleges in comparison to what the Veteran has alleged in years past, including especially when initially filing this claim in January 1998, the Board is finding him not credible in his assertion of having experienced continuity of symptomatology regarding his left knee since his service.  As of the Office of General Counsel's motion points out, it is well settled that the Board must make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  And because the Board is finding him and the others who have submitted statements on his behalf not credible, the Board is continuing to deny his claim just as it did in the prior adjudication.

II.  Whether Service Connection for this Claimed Left Knee Disorder is Warranted

The Veteran as mentioned attributes his current left knee impairment to an injury he sustained to this knee while in service, in November 1970, during physical training.

Service connection will be granted if it is shown his present-day disability resulted from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306.


Certain diseases like arthritis are chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 
10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Service connection may be granted for a disease diagnosed after discharge from service if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish entitlement to direct service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, indicating he has at some point since the filing of his claim, even if now resolved; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic (i.e., permanent) in service.  If, however, chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology after service is required to support the claim.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service.  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 his service; (2) there is 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, 10 Vet. App. at 495-96; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic", is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.

In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Savage, 10 Vet. App. at 497.  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).  This is another way of saying that evidence relating the currently claimed disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation.  Savage, 10 Vet. App. at 494-97.


A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  Lay evidence, however, can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Competent lay evidence means evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  The determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether his present condition is of a type requiring medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation).  Savage, 10 Vet. App. at 494-97.

So, recognizing this, in certain instances, lay evidence has been found competent with regards to a simple condition or disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).


Conversely, laypersons equally have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue requiring expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service [or where the incident in question is not claimed to have occurred in combat]), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).  See also Kahana v. Shinseki, 24 Vet. App. 428 (2011) (similarly allowing for VA adjudicators to draw a negative inference from no indication or not more indication of the now claimed about disability in the STRs when they are complete or substantially complete, in relevant part, and the event, injury or disease in service is not claimed to have occurred in combat and it is reasonable to have expectation it is the type of event, injury or disease that normally would have been reported or complained about).

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).

A Veteran is competent to report what he can observe and feel through the senses.  In essence, then, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board as mentioned must determine whether the evidence comes from a "competent" source.  But, as a second step, even if the evidence is determined to be competent, the Board must then additionally determine whether the evidence also is credible, or worthy of belief, as only then does it ultimately have probative value.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether it is also credible); Layno, supra (similarly distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry then requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999) (The ultimate determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other relevant evidence).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and his demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached 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).

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 (meaning about evenly balanced for and against the claim), with the Veteran prevailing in either event.  Conversely, the claim will be denied if the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In this particular case at hand, there is no disputing the Veteran meets the first and indeed perhaps most fundamental requirement for a service-connection claim, which is prove he has the claimed disability (here, a left knee disorder) - or, at minimum, show he has had it at least since the filing of his claim, even if it is now resolved.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  In the absence of proof of current disability, there is no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a diagnosis of the condition claimed).  See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (noting that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has a disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Considering this threshold preliminary requirement, the Veteran received a diagnosis of minimal degenerative changes (i.e., arthritis) of the left knee at the conclusion of his April 1998 VA compensation examination - which was more recently confirmed by another VA compensation examiner in June 2009.  Further, the private medical records reflect treatment for a left knee disorder since June 1998, including knee replacement surgery in June 2008.  Finally, a letter from Dr. D. T. states that he treated the Veteran on several occasions for arthritis of the knees, prior to the knee replacement surgery.  Dr. D. T. has performed a magnetic resonance imaging (MRI) study showing abnormality in the posterior portion of the medial meniscus, but no mention of arthritic changes of the left knee.  Accordingly, these findings are sufficient to establish a current left knee disorder.  See Boyer, 210 F.3d at 1353.

Consequently, the determinative issue (as it was when the Board previously denied this claim in November 2009 and again in February 2012) is whether the Veteran's current left knee disorder is attributable to his military service - but especially to an injury he sustained to this knee in November 1970 during the physical recruit training that he cites as reason or cause for this current disability.  Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("a determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service").  See too, Maggitt v. West, 202 F.3d.  1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

Regarding the reported injury in service, the Veteran's STRs confirm he was treated for an injury to his left knee in November 1970, which he reportedly had sustained a week earlier during physical fitness training (PFT).  He complained of pain over the medial aspect of the upper third of the tibia.  On objective physical examination, the examiner observed swelling and some discoloration and tenderness of the medial aspect of the upper third of the tibia.  Examination of the knee itself, however, was unremarkable (within normal limits (WNL)).  The evaluating physician suspected a stress fracture.  Treatment prescribed consisted of elastic Ace bandage, balm, and the Veteran was instructed to avoid running or marching, and prolonged standing for one week.

His STRs do not show any further complaints or treatment for a left knee disorder, including as a residual of that injury, for the remainder of his service - which is significant because he served for nearly 4 more years.  He was seen in outpatient consultation on several occasions during the remainder of his service, albeit for unrelated complaints, but nevertheless no further mention was made of any problems involving or referable to his left knee.  On one occasion, in March 1972, he was evaluated for multiple contusions and abrasions of his right knee and leg that he had sustained in a motor vehicle accident.  An X-ray of his right knee at the time, however, reportedly was negative.  And there again was no mention of any involvement or impairment of his left knee.

His STRs also include a narrative summary concerning a hospitalization in November 1971 for an unrelated matter.  He nonetheless had a physical examination during that hospitalization, and there again was no reference to any complaints or findings indicative of left knee disability.

The report of his July 1974 military separation examination similarly indicates that clinical evaluation of his lower extremities and musculoskeletal system was grossly normal, so including as concerning his left knee in particular.  But, as importantly, he had no complaints concerning this knee either, including in relation to the injury to this knee that he had earlier sustained during his service.  His military service ended a short time later, in August 1974.

There also is no objective indication of a left knee disorder, including arthritis, within the one-year presumptive period following his service - meaning by August 1975, certainly not to the required minimum compensable degree of at least 10-percent disabling, or even for many ensuing years until the 1990s.  Arthritis must be objectively confirmed by X-ray.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  So while it is true he is competent, even as a layman, to allege having continued to experience pain or other symptoms referable to this knee following the injury in service, even if not accompanied by contemporaneous medical treatment records, he is not competent to say he had arthritis in this knee until it was objectively confirmed by X-ray, which did not occur until much later.  See Buchanan v. Nicholson, 451 F.3d, 1331 (Fed. Cir. 2006) (indicating VA adjudicators cannot determine lay evidence lacks credibility merely because it is not accompanied by contemporaneous medical evidence, such as actual treatment records, but also recognizing that VA adjudicators retain the discretion to make credibility determinations and otherwise weigh the evidence submitted, including the lay evidence, in relation to other pieces of evidence).

The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or, here, an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology following the conclusion of his service and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

The Veteran first claimed entitlement to service connection for a left knee disorder, as a residual of that injury in service, in January 1998.  On his January 1998 claim application (VA Form 21-526), he indicated that he only had been treated for his left knee injury since 1993, so only during the then past 5 or so years; he did not mention or otherwise refer to any prior treatment for his knee injury either before, during, or even at any time since his service, certainly not on a frequent, recurring or ongoing basis as he and others now allege.

He had a VA compensation examination in April 1998 in response to his claim for disability benefits for a left knee disorder.  He complained of chronic left knee pain since the injury to his left knee joint while climbing a rope during his physical training in service, in 1970, when he fell.  At the time of the injury, according to him, he experienced acute pain and swelling of this knee.  He also reported being told by physicians in service that he had sustained a torn ligament, and that he was given conservative treatment and assigned light duty.  He related that his left knee pain had worsened over the past few years, with more frequent swelling, but generally after bumping or jarring this knee.  He also complained of flare-ups during cold weather.  He denied fluid retention in the left knee joint or a history of aspiration of the joint.  He reported occasional popping, but denied that the knee had given out on him.  He also denied weakness and fatigue of his left leg, but complained of difficulty going up and down steps, kneeling, or squatting.  He mentioned being seen by his family doctor for the past 5 or 6 years (so just dating back to the time, 1993, which he had indicated on his claim application in January 1998).  He had an MRI of his left knee joint and said he was advised that he had damage inside the knee, but he could not remember the exact terminology.  He said surgery was discussed, but he did not undergo any procedure.  He stated the scan was done about 4 or 5 years earlier, so, again, only dating back to 1993 or thereabouts.  An X-ray of this knee during the then current April 1998 VA compensation examination showed minimal degenerative changes.  The diagnostic assessment was residuals from traumatic internal derangement, left knee joint.

Also of record is a contemporaneous June 1998 statement reportedly from a Dr. D. T., although his signature is not discernible.  He indicated that he was the Veteran's primary care physician.  He also stated that he had treated the Veteran on several occasions for post-traumatic bursitis and arthritis of the knees.  He remarked the condition had originated from a fall during physical training when the Veteran had caught his leg in a rope and fell.  This doctor further indicated that results of an MRI had revealed a partial tear of the medial meniscus and associated degenerative changes in the left knee.  He said that he had reviewed the Veteran's history because of a large rather ventral abdominal scar due to ruptured appendix that had occurred while in service.


The Veteran had another VA examination (of his joints) in November 2000.  The examiner stated that he had asked to see the Navy health records from November 1970, so concerning the injury in service, but did not have these records available for his review.  So he noted the history was given by the Veteran personally.  It was noted that the Veteran had injured his left knee during boot camp during his last physical fitness test.  He stated that he was told not to report to the clinic at that time because of graduation.  He claimed that, upon completion of his training, he was transferred to another facility and seen in a clinic a month and a half later and prescribed restricted duty because of his left knee pain.  He claimed that, during his time in the Marines Corps and after his discharge from service, he had experienced occasional left knee swelling with knee strain on weather changes.  He reported being seen on different occasions by his private physician and was said to have "bursitis degenerative change."  The evaluating VA physician indicated he had reviewed an X-ray study done in April 1998 and another done in October 2000.  He remarked that the study from 1998 showed minimal degenerative changes with slight marginal spurring of the tibial condyle.  Whereas the study in October 2000 showed an ill-defined zone of increased density of the paroxysmal tibia, with periosteal reaction medially and laterally, and mild degenerative changes.  His diagnosis was mild traumatic degenerative arthritis of the left knee.

Of record, as well, is a June 2001 treatment report from Dr. D. T. indicating the Veteran was evaluated for a twisted left ankle.

In April 2002 this physician saw the Veteran in consultation for left knee pain.  The diagnosis was post-traumatic arthritis of the left knee.

A February 2003 treatment note from Dr. T. indicates the Veteran complained of bilateral (so left and right) knee pain, albeit worse in the left knee than in the right knee.  On objective physical examination there was tenderness in both knees, so bilaterally.  The diagnosis included post-traumatic arthritis of the left knee.


The Veteran had yet another VA examination (orthopedic) for rating purposes in January 2004.  This time, however, the examiner had opportunity to review the claims file.  The Veteran again stated that, while in basic training in the Marines Corps in 1970, he sustained an injury to his left knee while coming down a rope.  He said his drill sergeants "covered up" the injury so he would be allowed to graduate, but that he had had problems with persistent pain and difficulty with this knee ever since.  He stated that, during the 1980s he was evaluated by an orthopedic surgeon (apparently referring to the Dr. B.Z. identified in L.K.'s more recent December 2012 statement), but who was no longer practicing and whose records reportedly were unavailable.  He said he was then treated by Dr. T., and it was indicated that Dr. T's written office notes, some of which were described as unreadable elsewhere in this decision, documented that the Veteran was receiving treatment for bursitis and arthritis of his left knee and post-traumatic degenerative arthritis of his left knee.  The VA examiner also noted the he had reviewed an MRI report indicating there was an abnormality in the posterior portion of the medial meniscus, but that it was unclear whether there was an actual complete meniscus tear.  The MRI report did not mention any arthritic changes.  The VA examiner noted the STRs showed the Veteran was seen on only one occasion for evaluation of his left knee and on a different occasion for his right knee.  The VA examiner also noted the separation examination report was unremarkable for musculoskeletal abnormalities, so including as concerning the left knee in particular.  He also indicated there was no evidence or assertion regarding left knee difficulties from the time of discharge through the remainder of the 1970s, only instead beginning in the 1980s.  He acknowledged being uncertain how many times the Veteran had sought treatment with a private physician during the years since service.  He indicated the facts in the Veteran's medical record "mitigate against his current left knee pain being related to an injury to the knee while on active duty and point more towards a natural degenerative arthritis.  If there had been significant injury to the knee in 1970, one would expect more definite abnormality and diagnosis on the MRI done in the 1990's.  The X-ray changes described are consistent with a degenerative condition as opposed to a 
post-traumatic condition.  Also to be noted is the description of increased sclerosis in the proximal tibia which is possibly related to an old stress fracture.  Based on review of the medical records available, it is not at least as likely as not that the left knee degenerative arthritis is due to the left knee complaint the patient had while on active duty...."

Of record, as well, is a June 2009 addendum from the VA orthopedic surgeon who had performed the aforementioned examination in January 2004.  He realized the reason for the request for his new review of the claims file (repeat review) was that the statement made in the initial review that an MRI done in August 1999 was reason for the opinion concerning causation of the problems of the left knee was, in actuality, an MRI done on the right knee, instead.  So he was asked to again review the file completely and provide an opinion concerning whether the Veteran's current left knee problems are related to the injury to this knee that he sustained while on active duty in the military.  In response, this orthopedic surgeon stated that, after doing that complete review of the claims file, "my opinion remains the same, that it is unlikely the degenerative arthritis was due to the injury that occurred while on active duty."  He noted that the fact he made a misstatement concerning which knee had the MRI done in 1993 played "no real important bearing on the rendering of" his initial opinion.  As reasons and justification for his opinion, he indicated that, when the Veteran was seen in November 1970 for the injury, the record stated there was pain on the medial aspect of the proximal third of the tibia, but knee examination was within normal limits.  The objective evidence of the medical record, then, did not indicate there was an abnormal knee examination.  This VA examiner further observed there was no documented encounter with any medical provider concerning any knee complaints other than a 1972 cycle accident in which the Veteran sustained an abrasion on his right knee with a subsequently determined negative X-ray study.  This VA examiner also referenced the separation examination in July 1974, reflecting the lower extremities were normal.  He added that the examination accorded the Veteran in November 2000 was based only on history taken from him personally.  It was acknowledged in the report of that examination that the Navy health record (concerning the injury in service and evaluation and treatment the Veteran had received in the aftermath) was unavailable for review.  This commenting VA examiner then went on to point out there were no notes from the Veteran's examination with Dr. Z. during the 1980s.  There also was no reference to any of the records of Dr. T. or Dr. H., whose records were attached, referring to any treatment of either knee prior to 1993.

This commenting VA orthopedic surgeon went on to say that the records provided by Dr. T. noted an evaluation of the right knee with an MRI done in 1993.  Dr. T.'s records documented treatment of the left knee beginning in 1997, so later.  No history was provided.  This VA examiner indicated that in 2007 there were medical records documenting the right knee being as bad as the left.  There also was documentation that the Veteran had disc disease involving the cervical and lumbar spine.  The was discussion and, added the physician's note, about the fact the Veteran was an avid sportsman and worked as an electrician, where climbing, kneeling and squatting was an activity that was commonplace.  A recommendation therefore was made that those types of activities be avoided, which in turn raised the possibility that the Veteran's civilian occupation and avocation had involved a lot of stressful activities to the knee.  

In sum, this commenting VA orthopedic surgeon stated there was "no objective evidence documenting an actual knee injury based on the medical examination at the time of the injury to the left lower extremity in 1970.  There is evidence of bilateral involvement (meaning as concerning both knees, left and right) with arthritis and degenerative disc disease at multiple levels of the cervical and lumbar spine.  Therefore, concluded this VA examiner, "it is more likely this Veteran's knee arthritis etiology is a combination of genetic factors i.e. a type of structural protein that does not stand up well to stresses over time.  Also the stresses related to his occupation, and recreational activities possibly could be a factor."

Yet again in August 2011, this VA orthopedic surgeon who had reviewed the file in 2009 and had examined the Veteran in 2004 again reviewed the file and again acknowledged having done this.  He stated that his review of the file indicated the Veteran had undergone two compensation and pension examinations in the past, one in 1998 and a second one in October 2000, and these indicated neither examiner had provided an opinion concerning whether the problems with the left knee resolved to be related to the injury described by the Veteran that occurred while he was on active duty.  In his review of the file, this surgeon surmised "the fact remains the only reference made to the left knee was a progress note dated 11/2/70..." and this referred to the Veteran having injured the left knee a week earlier while on physical training.  This examiner stated there was no mention made of any further evaluation of the left knee or any complaint pertaining to the left knee during the remainder of the Veteran's military service.  Indeed, he stated that at discharge examination there was no reference to any ongoing problems with the left knee.  In commenting on the October 2000 X-ray of the left knee showing increased sclerosis in the proximal tibia possibly being as related to an old stress fracture, he stated "an area of increased sclerosis can occur from an old stress fracture.  It also can occur from increased stresses on a proximal tibia related to developing degenerative arthritis.  There is no way to determine on the basis of single X-ray the exact etiology."  This surgeon stated he was also asked to provide comments on the reported previous failure to comment on the objective symptomatology of swelling and discoloration of the left knee noted in the November 1970 clinical record.  He stated in response that the only comment he could make is that the physical findings at that time were consistent to a stress fracture and the area of swelling and discoloration was located in the paroxysmal third of the tibia.  He stated the knee examination itself, however, was listed as normal and he commented that it appeared that, based on the examination by the provider in 1970, "the knee joint was not injured."  This surgeon stated "in summary, if the Veteran's statement of the incident occurring to his left knee is to be accepted as objective evidence, then my opinion would be that the problems that have occurred later in his life to that knee are at least as likely as not related to the injury described.  However, if taking objective statements from the records available are to be accepted as the only criteria for making a decision, then the current condition of the left knee is not at least as likely as not related to his active duty service.  There is no information that would be gained by reexamination of the Veteran."


Most recently received at the Board in January 2013 along with a waiver of initial RO consideration was a December 2012 letter from L.K. indicating she was the Office Manager from 1970 through 1983 for Dr. B.Z., an Orthopedic Surgeon.  She attested that she remembered the Veteran being Dr. Z's patient, seeing him "on numerous occasions for maintenance care and medication for an injured knee", so presumably referring to the injury in service, although she did not provide any specific dates of the treatment during the timeframe of her tenure in this doctor's practice or more detailed information as to what the Veteran's treatment had involved.

In addition to this lay statement from L.K., also during the course of the appeal the Veteran has submitted a statement from his mother dated in May 2011 in which she reported she had visited him in service and observed that he limped and had a great deal of left knee pain because of the reported injury in 1970 in service.  She stated the limping and pain had been continuous ever since.

Also in support of the Veteran's claim is a statement from another person who noted he had first met the Veteran in 1976.  He recalled the Veteran sharing his concerns with him about his left knee disability.  This person also indicated that in later years the Veteran had had a noticeable limp.

Addressing first the medical evidence concerning the determinative issue of etiology of this left knee disability and, as explained, especially in terms of the likelihood it is related or attributable to the injury the Veteran sustained to this knee in November 1970 during his recruit training, the January 2004 VA compensation examination is of little probative value in this respect because the examiner was looking at an X-ray for the Veteran's right knee, while providing an opinion concerning his left knee.  Further, the April 1998 VA compensation examination does not include an opinion regarding the etiology of the Veteran's left knee disorder.  The even more recent June 2009 VA compensation examiner's opinion, however, stated that it is "more likely this Veteran's knee arthritis etiology is a combination of genetic factors, i.e., a type of structural protein that does not stand up well to stresses over time."  This VA examiner, who is an orthopedic surgeon, also commented on the Veteran's statements to Dr. M.H. that the Veteran is an "avid sportsman and works as an electrician, where climbing, kneeling and squatting activity ... is commonplace."  Dr. M.H.'s consequent recommendation was to avoid such activities apparently because of the amount of inordinate stress and strain it likely put on the Veteran's knee.  The private treating physicians, Drs. M.H., and C.G., similarly do not link the Veteran's left knee disorder to his military service in their records he submitted, including specifically to the injury in question in November 1970.

One of the Veteran's private treating physicians, Dr. D.T., stated in the June 1998 letter that the Veteran's post-traumatic bursitis and arthritis of the left knee originated in a fall in service during physical training - so presumably referring to the injury in November 1970.  In another more recent statement received in May 2011, Dr. D.T. added the Veteran got his left foot tangled in a rope that he was descending in service.  His left knee twisted and his entire body was hanging by his left lower extremity.  This resulted in a left knee injury.  The knee immediately became swollen and painful.  He has had left knee swelling and pain since then.  The injury resulted in degenerative arthritis.

The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against a Veteran's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  But the Court distinguished Mariano in Douglas v. Shinseki, 23 Vet. App. 19 (2009).  In Douglas, the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim.  Douglas, at 26.

The evidence in this particular instance supporting the claim was not unrefuted, and the Board's June 2011 remand was pursuant to the Court's Order to have the VA compensation examiner that had provided the June 2009 opinion comment further, which he since has in August 2011.  And as directed, he noted the left tibia X-ray showing increased sclerosis in the proximal tibia, possibly related to an old stress fracture, and he acknowledged that an area of increased scoliosis can occur from an old stress fracture.  But he added that it also can occur from increased stresses on the tibia related to developing degenerative arthritis, which apparently is why he said that "[t]here is no way to determine on the basis of single x-ray the exact etiology."

In summary, this VA examiner concluded that:

if the veteran's statement of the incident occurring to his left knee is to be accepted as objective evidence, then my opinion would be that tje (sic) problems that have occurred later in his life to that knee are at least as likely as not related to the injury described.  However, if taking objective statements from the records available are to be accepted as the only criteria for making a decision, then the current condition of the left knee is not at least as likely as not related to his active duty service.

The mere fact that the Veteran did not have indications of a left knee disorder when separating from service, or for many ensuing years, is not altogether dispositive of his claim.  The laws and regulations do not require in-service complaints of or treatment for a left knee disorder to establish entitlement to service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (concerning a claim for what was alleged to be delayed-onset hearing loss).  See also 38 C.F.R. § 3.303(d) (indicating service connection is permissible for disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service).  Rather, it is only required that he currently have the claimed disorder (which, as mentioned, he does), and that he have competent and credible evidence etiologically linking the disorder to his military service or that the evidence on this determinative issue of causation be in relative balance for and against his claim to warrant resolving this doubt in his favor and granting his claim.  See 38 C.F.R. § 3.102.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting a claim for service connection, nor is "obvious" or "definite" etiology).  But, else, if the weight of the evidence is against his claim, it must be denied.

The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  See Reonal v. Brown, 5 Vet. App. 548 (1993).  To be considered probative evidence, a conclusion from a doctor must be enhanced by sufficient commentary so as to allow for weighing of that conclusion.  See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion.").

A medical opinion that is based on facts provided by the appellant that previously have been found to be inaccurate or because other facts in the record contradict the facts provided by the appellant that formed the basis for the opinion may be rejected; however, a medical opinion may not be disregarded solely on the rationale that the medical opinion was based on a history given by the appellant.  See Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005).  The probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Here, there also is the element of lay evidence, which, as mentioned, VA's Office of General Counsel cited as reason for vacating the Board's most recent decision denying this claim in February 2012.  Besides the Veteran's lay statements in support of his claim, his mother in a statement received in May 2011 indicated she had visited him in service and that he limped and had a great deal of left knee pain due to his injury in service.  She said the limping and pain had been continuous ever since.  A friend of the Veteran, C.T., also noted that he had first met the Veteran in 1976 and that the Veteran had shared his concerns with him about his left knee disorder.  C.T. also noted that, in later years, the Veteran had had a noticeable limp.

So based on the opinions of the VA examiner who provided the nexus opinion and Dr. D.T., if the Veteran's and the other laypeople's versions of the events that transpired in service and thereafter are found credible, the Veteran is entitled to service connection for his current left knee disorder.  Clearly, two physicians have rendered opinions to this effect.

Indeed, because of the Board having readily conceded this in its prior February 2012 decision, VA's Office of General Counsel cited the consequent importance of explicitly stating whether this lay evidence mentioned is credible, so can be accepted as true.

A Veteran is competent to report what occurred in service because testimony regarding firsthand knowledge of a factual matter is competent.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  There has never been any dispute over whether he injured his left knee during his service, however, so sustained relevant trauma to this knee in the manner alleged, that being, during his recruit training.  This always has been evident in his STRs, thus, quite clear.  But mere injury in service, alone, is not enough to sustain a claim, as there also has to be chronic (permanent) disability as a result or consequence, meaning that has persisted to the present day or as mentioned, at the very least, to the time of the claim's filing, even if now resolved.  And it is in this equally critical respect that the evidence, on the whole, is less favorable to the claim.

Following the documented November 1970 injury to his left knee while in service, the Veteran continued to serve for nearly 4 more years without any further complaints concerning his left knee, including as a residual or result of that injury.  He was seen on several occasions during the remainder of his service, albeit for unrelated complaints, but nonetheless did not expressly mention or otherwise refer to any continuing problems he might have been experiencing with his left knee.  On one particular occasion, for example, during hospitalization from September to November 1971 for an unrelated disorder, he even had a general physical examination and, still, there was no mention whatsoever of his left knee causing any problem or having any then current impairment, again, including as a result of the injury he had earlier sustained during his service.  Similarly, during his military separation examination in July 1974, he had opportunity to mention any then current problems with his left knee, including those that had been lingering since his injury earlier in service, but there is no indication he did or had any residual disability during the objective clinical portion of that evaluation.  So while it is true to say the mere fact there was not additional documentation of relevant symptoms or objective clinical findings during his service, as reflected in his STRs, is not in and of itself tantamount to concluding he did not have any lingering left knee disability as a result or consequence of the injury he had earlier sustained during his service, the absence of more documentary evidence in the way of his STRs tends to go against any notion that he did.  This is especially true since his mother and C.T., in their statements, refer to him having had what amounted to a visible limp, so presumably favoring this knee.  It seems illogical that he would have had that level of impairment, noticeable even to a casual bystander, yet not made any further mention of it during his service or this been objectively evident during the examinations he had in service following his injury up to the time of his discharge.  Contemporaneous medical findings, so including in this instance those from during his service as reflected in his STRs, are entitled to significant probative weight, especially when compared to differing lay testimony to the contrary offered many years later, long after the fact.  Struck v. Brown, 9 Vet. App. 145, 155-56 (1996).

But aside from this, what is also telling and resultantly convincing and influential to the Board is that the VA compensation examiner that commented in June 2009 and more recently in August 2011, including especially to address the specific concerns noted as reason for not accepting his initial opinion, in response spoke directly to the specific findings (subjective and objective) in the records of the evaluation and treatment the Veteran received in the immediate aftermath of his injury in service.  Among other things of note, this VA examiner cited the absence of any mention in the records of the evaluation and treatment the Veteran received in the immediate aftermath of his November 1970 injury of specific trauma to the left knee joint, itself, as opposed to just instead regarding the neighboring upper tibia.  He also considered it significant that there was not more objective indication of consequent disability or impairment in the STRs.  He therefore considered it noteworthy that there was not more mention of injury to the left knee joint, itself, in the STRs, 

as he believed would have been far more apparent had the Veteran actually sustained the amount of injury to his left knee that he is now alleging.  So in making this distinction, this VA examiner readily conceded the Veteran had sustained injury in service, just did not believe the current disability affecting this knee was consistent with the type and manner of injury actually shown.  Put another way, while it is impermissible for an examiner to merely use the absence of indication of disability in the STRs as reason, alone, for concluding the Veteran did not have disability, it is entirely permissible for an examiner, as here, to have expectation of certain findings being evident, once the Veteran was evaluated or examined regarding said injury, or to at least have complained about it more than he did given its alleged severity.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion).  Here, it is not so much the absence of evidence in the STRs showing the injury occurred, and even that the Veteran was treated in the immediate aftermath of it, rather, what actually was shown once he was treated (or, better yet, not shown) and the fact that he had no further complaints regarding his knee for the remainder of his service, once treated.

This VA examiner charged with commenting on this determinative issue of the etiology of the Veteran's current left knee disability explained why his review of the file had not revealed evidence of underlying injury to the knee, itself, which might have later resulted in the current left knee disability, in particular, the later development of degenerative arthritis in this knee.  To this end, he pointed to specific complaints the Veteran had in service as they related to specific areas of his tibia versus knee as reason for ultimately disassociating the current left knee disability from that injury in service.  He also highlighted the fact that the Veteran had no further complaints referable to this knee for the remainder of his service, which the Board would be remiss if not pointing out went on for nearly another 4 years.  Indeed, that injury occurred only some 3 months into his service, during recruit training, so the overwhelming majority of his service was after it occurred, by quite a substantial margin.  So this VA examiner's opinion is 

specifically tailored to the specific facts and circumstances of this case (responsive to the specific details of the injury in service insofar as its nature and severity, etc., and what occurred during the immediately ensuing years), whereas the contrary opinions supportive of the claim are much more nonspecific, general or generic and do not address specific findings either in service or during the many years since, including those the Court specifically cited as reason for not accepting the VA compensation examiner's initial June 2009 opinion.  It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others, including favoring the opinion of one physician over another, so long as the Board provides adequate reasons and bases.  See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Moreover, the adoption of an expert medical opinion, such as here since the VA examiner who commented is an orthopedic surgeon, so specialist in the subject matter at issue, may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as also occurred here, the expert fairly considered the material evidence seemingly supporting the claimant's position.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995).

And although even this VA compensation examiner who concluded unfavorably accepted that it was possible the Veteran's current left knee disability is attributable to the injury in service, the overall tone of this examiner's June 2009 opinion and the August 2011 supplement to it is much more of the conclusion that there is no such causation or correlation in this particular instance.  Saying or acknowledging something posited is "possibly" true or "may" be true is just as well akin to saying it also possibly is not true or may not be true, so sufficiently speculative in nature so as to not warrant the granting of service connection.  See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative).

Turning next to the remainder of the lay evidence, both insofar as its competency and credibility, so resultant probative value.  This, as mentioned, was the failing in the Board's prior February 2012 decision, according to the unilateral, unopposed, motion VA's Office of General Counsel filed on behalf of the Secretary.

The Veteran did not initially claim entitlement to service connection for a left knee disorder until January 1998, so not until many years (indeed decades) following his discharge from service in 1974.  There may have been legitimate reasons or justification for that delayed filing of his claim, far too many for the Board to speculate on.  But, regardless, what is most telling is that, when specifically asked on the claim application form (VA Form 21-526) to list the civilian physicians and hospitals where he had received relevant treatment before, during, and since service for his left knee injury being claimed, he only mentioned seeing Dr. T. (not also Dr. Z), and only since 1993.  He made no reference whatsoever on that application form to also having been seen by Dr. Z. prior to that in the years more immediately following his discharge from service.  This is in stark contrast to the statement he most recently submitted from L.K. in December 2012, who to reiterate said she was the Office Manager for Dr. Z. from 1970 to 1983 and therefore, in that capacity, remembered the Veteran being a patient of Dr. Z's (an orthopedic surgeon) and seeing Dr. Z "on numerous occasions for maintenance care and medication for an injured knee."  The Veteran also mentioned having been evaluated or treated by Dr. Z during the 1980s, so before 1993, when more recently examined by VA for compensation purposes in January 2004 concerning his claim.

This reported history, however, is patently inconsistent with and runs afoul of what he had reported on his initial application for VA compensation benefits in January 1998 since he only then instead reported having been treated by Dr. D.T. since service, not also by Dr. Z, and as importantly only since 1993, so not also during the preceding years from 1970 to 1983 of L.K.'s supposed tenure as Dr. Z's Office Manager.  Had the Veteran in fact also been treated by Dr. Z during those earlier, intervening years, especially the number of times L.K. now alleges in her December 2012 statement, so with that level of frequency, it seems only logical that the Veteran would have indicated this when initially filing his claim in January 1998, but he clearly did not.  He only, instead, began alleging this far more recently, including during his January 2004 VA examination, and only once on notice that, for his claim to succeed, he needed to try and show continuity of symptomatology since service, such as, apparently, might be deduced from him (with the help of L.K.) attesting that he had experienced problems with his left knee in years past, so much so as to have required ongoing treatment even prior to the 1993 commencing date he initially indicated on his January 1998 claim application.  The fact that he, in concert with L.K., has given differing accounts of the amount and extent of his treatment for his left knee disability since service, including insofar as when his treatment started after service (not until 1993 versus what he now claims, earlier, during the 1980s), tends to undermine his credibility concerning this and, in turn, his assertion that he has experienced continuous symptoms (i.e., continuity of symptomatology) since his service.  He is an inconsistent historian in that he has given differing accounts.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report regarding the cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  Accordingly, because he resultantly is not credible, his statements and history he apparently recounted to the doctors that submitted statements on his behalf also correspondingly decline in probative value since they rely on this inaccurate history.  A medical opinion based on an inaccurate factual premise has no probative value.  Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

While it is true according to the holding in Buchannan and its progeny that receipt of treatment is not equivalent to the experiencing of symptoms, and thus should not be confused as being required under 38 C.F.R. § 3.303(b) to establish continuity of symptomatology since service, in this particular instance it is the Veteran, himself, who is relying on and referencing the amount of treatment he supposedly has received for his left knee since service as support for the notion or what seemingly should amount to prima facie evidence that he has experienced continuous symptoms since service.  He made this quite clear when submitting his most recent December 2012 statement when referring to the necessity and importance of considering the new evidence he was submitting along with his statement (referring to L.K.'s accompanying letter) in combination with the other evidence he had submitted previously.

But given the patent inconsistencies as to when he was first treated for his left knee following the conclusion of his service, and by whom, this by negative inference undermines the credibility of his testimony regarding having supposedly experienced continuity of symptomatology since service.  The treatment from Dr. Z that the Veteran says began during the 1980s, as evidenced by the accompanying letter from the Office Manager L.K., would tend to show symptoms incepting much earlier than in 1993, when the Veteran instead indicated in his initial January 1998 claim application was when he was first treated after service.  The Board is at a complete loss to understand how he would have not mentioned the earlier treatment from Dr. Z when filing his January 1998 claim, especially, again, considering the frequency ("numerous occasions") in which it is now claimed to have occurred.  The Court has held that VA cannot ignore his lay testimony concerning this simply because he is an interested party.  His personal interest, however, may affect the credibility of his testimony, as it is shown to in this particular instance since there was only this allegation of earlier treatment (meaning earlier than 1993) once it became apparent he needed to show earlier manifestation of relevant symptoms and disability referable to his left knee, which he apparently tried to do by starting to mention earlier treatment during the 1980s by Dr. Z.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341, 345 (1999).  See also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran long after the fact).


The lay statements offered in support of the claim must be both competent and credible to ultimately have probative value, and they are not in this particular instance for the reasons and bases discussed.  See again Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (a legal concept determining whether testimony may be heard and considered) and credibility ("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) (competency is a legal concept determining whether legal testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).

The claim resultantly again must be denied because the preponderance of the evidence continues to be against the claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

The claim of entitlement to service connection for a left knee disorder as a residual of injury is denied.



	                     ______________________________________________
	KEITH W. ALLEN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs