Citation Nr: 1308490 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-40 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1968. This case comes before the Board of Veterans Appeals (the Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in part, denied the Veteran's claims of entitlement to service connection for right knee and left knee disorders. FINDINGS OF FACT 1. A right knee disability was not manifest during service, was not manifest within one year of separation from service, and any current diagnosis of a right knee disability is not attributable to active service. 2. A left knee disability was not manifest during service, was not manifest within one year of separation from service, and any current diagnosis of a left knee disability is not attributable to active service. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by military service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. § 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. A left knee disability was not incurred in or aggravated by military service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. § 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. A May 2009 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claims. This letter informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, relevant service treatment records and VA medical records are in the file. The Board concludes that all records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA examination for his disability claims in October 2009. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination report to be thorough and complete. Therefore, the Board finds the examination report and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service connection - Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include organic diseases of the nervous system, such as hearing loss disability, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Factual Background Service treatment records (STRs) include some complaints of left knee pain. In February 1967 STRs, the Veteran reported he hurt his left knee when oversees. He reported he fell on some ammo boxes, and again on his left knee when aboard the ship. He complained it hurt to bend his knee. Upon examination, the examiner noted he had good range of motion, with some swelling of the right knee. There was no evidence of internal derangement. The Veteran was given crutches and a light shoe for two weeks. Active service examination reports and associated medical history report dated in April 1964 and July 1968 are negative for any complaints or abnormal findings of the lower extremities. In private treatment records from Holmes Family Health Associates dated in February and July 1996 and September 1997, the Veteran complained of pain in both knees. In the February 1996 record, he specified pain especially in his right knee. The examiner noted that the pain started together. An X-ray report found degenerative joint disease of both knees. In private treatment records dated from December 2006 to February 2007 indicated treatment for knee pain including injections. A November 2007 Wooster Community Hospital note indicates the Veteran underwent a bilateral total knee replacement arthroplastis. The admission note indicated the Veteran has had a long and ongoing history of pain in the knees, left worse than the right. An X-ray revealed significant osteoarthritis of the bilateral knees, primarily the medial compartment but also the patellofemoral compartment. He has had conservative treatment in the form of anti-inflammatory medication, corticosteroid injections, and Synvisc injections, and, having failed that conservative treatment, he has elected to proceed with bilateral knee replacement. Post-service VA progress notes dated March 2008 to April 2011 include ongoing complaints of knee pain. In a June 2009 statement, the Veteran asserted that he injury his left knee while unloading artillery ammunition off the back of a truck. He reported he twisted his knee. Though it was a painful injury, he was able to function until a fall on the knee while on a military exercise. He sought treatment at that point. The Veteran reported he was placed on crutches, and it relieved enough pain that he could perform his duties. He avoided stress to his left knee. He claimed he transferred his stress to his right knee. After a period of time, this resulted in two bad knees. He had to have both knees replaced. During an October 2009 VA examination, the Veteran reported he injured his left knee on two separate occasions while in active duty. He reported his first injury was in 1966 and the second in 1967. He reported the first injury was a twisting the knee, and, in the second, he fell and injured the knee. Since that time, the Veteran stated he has always had a sore and tender left knee for which he always favored the left knee by relying more on the right knee. The Veteran stated that throughout the course of the years, he denied any stiffness, swelling, heat, redness, locking or giving way of either knee, but stated that the pain progressed steadily. He was treated with NSAIDs without complications and eventually underwent bilateral total knee replacements in 2007. He complained of chronic pain and soreness on a daily basis. The Veteran reported he is retired and that he worked for the telephone company for 26 years. According to the examination report, he reported that he initially started out working for the telephone company climbing poles and doing manual labor. However, the last five to six years of his employment he worked at a sedentary office type position. After a physical examination, the diagnosis was post-operative bilateral total knee replacements. The examiner opined that it is less likely than to that the Veteran's left knee is a result of his isolated injuries during his active military service over 40 years ago. Rather, the examiner, considering the Veteran's history and current physical findings, concluded that his knee disabilities were attributable to normal age progression that was further exacerbated by his occupational history that includes climbing telephone poles for a period of 20 plus years. In a March 2011 statement, the Veteran reported that after his initial knee injury, he tried to ignore the injury and still perform his military duties. Rather than improving, the condition continued to get worse over time and there were indeed periods of stiffness, swelling, difficulty flexing or bending the knee. He asserted that buckling of the knee is what caused the second accident that further injured the knee. The Veteran also reported that he worked in a sedentary office type position during the middle years of his employment, and not during the last 5 or 6 years. The Veteran further asserted that during his 20+ years of employment, he worked a central office job for five or six years with no climbing, as a key system man for three years with little to no climbing, and with a lift or bucket truck for eight years. He reported that even during the time when he held a job where climbing was an integral part, it was not uncommon for days to go by without the need to climb a pole. The Veteran claimed that the limited time he spent climbing poles had much less of an effect on his knee problems than the complications arising from the original injury suffered while in the military. Analysis The evidence clearly shows that the Veteran has a current diagnosis of right and left knee disorders. As such, the critical question is whether any current knee disability was incurred in service or otherwise related to an incident of service. After considering all the evidence of record, the Board concludes that the weight of the evidence is against his contentions. Initially, while the Veteran has reported ongoing pain since active service, the objective evidence does not contain X-ray evidence of arthritis of either knee within a year following his separation from service. Accordingly, service connection for arthritis on a presumptive basis is not warranted. With regard to service connection on a direct basis, the Board finds the opinion expressed in the October 2009 VA examiner's report of significant probative value. The report was based on an interview of the Veteran, his reported medical history, appropriate diagnostic testing, physical examination, and complete review of the claims file, including service treatment records. Further, a complete and thorough rationale is provided for the opinions rendered. As noted, the examiner considered the Veteran's reports of knee pain in service and continuity of knee pain thereafter, but did not find the statements sufficient on which to base an opinion as to etiology. By contrast, the examiner noted the lack of further treatment or reported problems in service and for years after service. Based on all the evidence, the examiner concluded that the Veteran's current knee disabilities were not caused by or a result of any incident in military service. The examiner's conclusion is fully explained and consistent with the evidence of record. The Board has considered the Veteran's reports that he experienced a continuity of left knee problems since active service. Credibility, however, is an adjudicative and not a medical determination. The Board has 'the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the 'inherent characteristics' of the Veteran's current statements as to the circumstances of his in-service injuries and continuity of left knee problems are inconsistent with the objective medical record and the Veteran's own contemporaneous statements. In that regard, the Board notes that the Veteran's service treatment records include some complaints of left knee pain in February 1967. However, at the time of the Veteran's separation from service in July 1968 the Veteran denied a history of lower extremity problems of any kind. After service, there is no indication that the Veteran sought treatment for knee problems for multiple years. On the contrary, the first documented report of knee problems after service was in 1996, nearly thirty years after service separation. The Board also has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, this is not a case in which the record is merely silent regarding whether she experienced a continuity of knee problems following separation from active service. Rather, the Veteran specifically denied knee problems at the time of his separation examination in July 1968. Moreover, physical examination of the knees at separation was negative. In addition, during service, the Veteran sought treatment for additional issues, including treatments for skin problems. The Board finds it reasonable to conclude that had the Veteran been experiencing on-going knee problems that he would have reported these problems at the same time as other complaints. In essence, the Board does not find the Veteran's contentions regarding a continuity of symptoms since service for any of his claimed disabilities is credible. The Board also has considered the statements of record from the Veteran attempting to etiologically link his current knee problems to his military service. The Board acknowledges that he can attest to factual matters of which he has first-hand knowledge, such as experiencing a knee injury and ongoing knee problems, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this case, the Board concludes that any expressed opinions as to etiology are significantly outweighed by the opinion of the October 2009 medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In conclusion, the October 2009 VA examiner clearly reviewed the Veteran's medical history, interviewed the Veteran, and offered a detailed rationale for the expressed opinions. The Veteran's representations of a continuity of knee problems from service are refuted by the record and deemed less than credible. Thus, the Board finds the October 2009 VA opinion to be competent and the most persuasive of record. As such, service connection cannot be granted for the claimed disabilities on a direct basis. As service-connection for a left knee is not warranted, service connection for a right knee disorder on a secondary theory, is likewise not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs