Citation Nr: 1308024 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 11-13 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left knee disability. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to November 1983. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran's has credibly identified physical duties involving repetitive bending, crawling, kneeling, and climbing in order to perform aircraft maintenance in service. 2. The Veteran did not have chronic left knee symptoms in service, or continuous left knee symptoms since service. 3. Arthritis of the left knee did not manifest in service or within one year of service separation. 4. The Veteran has current left knee degenerative joint disease. 5. The Veteran's currently diagnosed left knee disability is not related to service. CONCLUSION OF LAW The criteria for service connection for a left knee disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) 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. Id. In a May 2010 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The May 2010 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, copies of service personnel records, private treatment records, VA examinations, and the Veteran's statements. The Veteran was afforded a VA examination to address the claim for service connection for a left knee disability. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the January 2012 VA examination and opinion obtained is adequate as it was predicated on an examination and interview of the Veteran, a review of the claims file to include relevant findings from service treatment records and post-service treatment records, considered the Veteran's lay statements with regard to his in-service history, and the VA examiner provided and adequate rational for the opinion rendered based on an accurate factual history consistent with the Board's own findings. For these reasons, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion has been met. 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 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). In this case, the disability at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown 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. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence does not establish that a currently diagnosed left knee disability is related to service. Private treatment records and a January 2012 VA examination show that the Veteran has currently diagnosed left knee degenerative joint disease. The Veteran contends that his currently diagnosed left knee disability is related to his physical duties during 20 years of service performing aircraft maintenance. The Veteran asserts in October 2010, May 2011, and May 2012 lay statements that his duties including bending, crawling, kneeling to perform aircraft maintenance; climbing up and down maintenance stands and "cherry picker" elevation stands; and crawling under aircraft. Copies of personnel records, submitted by the Veteran, confirm the Veteran's duties involving inspections, repair, and maintenance of aircraft and attest to the high quality of his work. The Board finds that the Veteran is competent to describe his physical duties in service, and the Board finds that the Veteran's statements are credible and consistent with the circumstances of his service. Based on the evidence of record, lay and medical, the Board finds that the weight of the evidence does not demonstrate that the Veteran had chronic symptoms related to the left knee in service, or continuous symptoms since service. Service treatment records do not reflect any treatment, diagnoses, or complaints referable to the left knee at any time in service. Similarly, a March 1963 enlistment examination, February 1968 reenlistment examination, and periodic examinations completed in March 1978, March 1982, and May 1983 do not describe any treatment, diagnoses, complaints or injury to the left knee. While it does not appear that a separation or retirement examination was completed, the May 1983 periodic examination is dated approximately six months prior to the Veteran's separation and provides probative, contemporaneous evidence with regard to the Veteran's physical state around the time of his separation from service. The Veteran has not otherwise identified the presence left knee symptoms in service. Accordingly, the Board finds that the Veteran did not have chronic symptoms related to a left knee disability in service. The Board finds that the Veteran did not have continuous symptoms of a left knee disability since service. In that regard, the earliest post-service evidence of a left knee disability, lay or medical, was in May 2010. Accordingly, the Board finds that arthritis of the left knee did not manifest in service or within one year of service separation. A private treatment report dated in May 2010 reflects a diagnosis of degenerative joint disease of the knee. October 2010 x-rays of the knee confirm that the Veteran had small degenerative osteophytes in all compartments of the left knee. A January 2012 VA x-ray assessed the Veteran with degenerative changes in the left knee. A September 2012 private treatment report from Dr. T.K. reflects mild arthritis of the left knee. The Veteran has not asserted that his left knee has been symptomatic since service. The Board finds that, absent evidence related to complaints or symptoms of a left knee disability for 17 years following the Veteran's separation from service, the Veteran's left knee symptoms were not continuous since service. The Veteran contends that his current left knee disability is related to physical duties performed during his 20 years of service, and the Board finds that the Veteran has credibly identified physical duties involving repetitive bending, crawling, kneeling, and climbing in order to perform his aircraft inspections and maintenance in service. The Veteran submitted several private medical opinions in support of this contention. An October 2010 opinion from Dr. R.A., a Doctor of Osteopathy, states that the Veteran's bilateral knee pain "could be a result of his 20 years of working and using maintenance stands and performing cherry picker activities." In a May 2011 addendum to the October 2010 opinion, Dr. R.A. confirmed that he reviewed the Veteran's work evaluation reports (service personnel records), and that according to the Veteran's MOS and his work evaluations, it was clear that he was involved with the aircraft maintenance field. In a September 2012 opinion, Dr. T.K., noted the Veteran's military work history, consisting of rigorous crawling, kneeling, and climbing as well as the Veteran's report of the gradual onset of pain to his left knee that comes and goes. Dr. T.K. stated, "it may be that long time work as a maintenance specialist may have led to a certain degree of arthritis over time." In an October 2012 letter, Dr. J.O. stated that the Veteran had been his patient since October 2009. He stated that the Veteran had "chronic degenerative joint disease due to osteoarthritis that might be du[e] to constant bending, crawling and kneeling when he was a mechanic in the [A]ir [F]orce." Dr. J.O. noted that the Veteran was an aircraft mechanic and he was constantly doing these activities which slowly affected his joints, mainly his knees. While private opinions of record are based on the Veteran's credible report describing his physical duties in service, these physicians did not consider the absence of left knee complaints or treatment shown in service treatment records, or the lack of continuity of symptoms for many years thereafter. Therefore, while the Board has accorded some probative weight to these opinions, the Board finds that the opinions do not consider the Veteran's full medical history. More importantly, the Board finds that medical opinions from Dr. R.A., Dr. T.K, and Dr. J.O. are too speculative to establish service connection for left knee degenerative joint disease. See Dixon v. Derwinski, 3 Vet. App. 261 (1992) (a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement). Private medical opinions of record state that the Veteran's current disability "could be a result" of his work in service, that work as a maintenance specialist "may have led" to a certain degree of arthritis, and that chronic degenerative joint disease "might be due to" bending, crawling and kneeling in the Air Force. VA regulation provides that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative.) Accordingly, the Board finds that private medical opinions of record are insufficient evidence of a nexus or relationship between the Veteran's current left knee disability and service. The Veteran was afforded a VA examination in January 2012. The January 2012 VA examiner reviewed the claims file and interviewed the Veteran. The VA examiner identified pertinent in-service duties described by the Veteran, which included repetitive climbing and descending ladders from various aircraft to complete pre-flight and post-flight inspections and repairs. The Veteran denied any specific injury to the knees in service. The VA examiner also cited evidence from the claims file, including periodic examinations in service which show that the Veteran had no lower extremity complaints or complaints related to swollen or painful joints in service. A physical examination was completed and private x-ray reports, and x-rays completed that day were reviewed. The VA examiner ultimately opined, based on a review of the claims file and consideration of the Veteran's lay statements, that the currently diagnosed left knee disability was less likely than not incurred in or caused by service. The VA examiner reasoned that during the Veteran's 20 years of maintenance work, he was repetitively climbing and descending ladders in order to inspect aircraft; however, osteoarthritis can be caused by aging, heredity, and injury from trauma or disease, and the claims file had no documentation showing that he complained of, or was treated for knee problems. The Board finds that the VA opinion is probative. The VA examiner considered the objective findings from service treatment records, as well as the Veteran's physical duties during his 20 years of service doing aircraft maintenance work, but nonetheless opined that the Veteran's current left knee disability was not incurred in service. The Board finds that VA opinion was adequately based on objective findings as shown by the record, as well as the Veteran's credible reports describing his physical duties in service, and accordingly, the Board finds that the medical opinion rendered was based upon a full and accurate factual premise. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the January 2012 VA opinion provides competent, credible, and probative evidence which shows that currently diagnosed left knee degenerative joint disease is not etiologically related to service. Insomuch as the Veteran, himself, asserts that his current left knee problems are directly related to his in-service duties in aircraft maintenance, the Board finds, absence a showing of chronic symptoms in service, or continuous symptoms thereafter, that the Veteran is not competent relate his currently diagnosed left knee degenerative joint disease to service. While the Veteran is competent to describe his physical duties in service, he does not have medical expertise and cannot provide a competent opinion regarding diagnosis and causation. See Layno v. Brown, 6 Vet. App. 465 (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")). In light of the probative medical opinion evidence provided by the January 2012 VA examiner, the Board finds that the Veteran's assertion with regard to causation is of little probative value. For the reasons discussed above, the Board finds that the weight of competent, credible, and probative evidence of record shows that a left knee degenerative joint disease was not incurred in service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a left knee disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs