Citation Nr: 1310901 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 06-05 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from November 1974 to October 1983. The Veteran also had service in the United States Naval Reserves (Reserves). This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This case was previously before the Board, most recently in June 2011, at which time the case was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT A right knee disability is not etiologically related to the Veteran's active service and right knee arthritis was not present within one year of his separation from such service. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by active service and the incurrence or aggravation of right knee arthritis during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 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), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in October 2004 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In March 2006, the Veteran was mailed a letter which provided him with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded appropriate VA examination. Additionally, the Veteran has reported treatment for a right knee injury at a private medical center during his active service. Attempts to obtain the identified records have been made and VA has been notified that the records were destroyed. The Veteran was notified of this fact and afforded an opportunity to obtain the records on his own. No records were ever received. The Board finds that VA has fulfilled its duty to assist the Veteran in obtaining the identified private treatment records. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases set forth in 38 C.F.R. § 3.309, to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (noting that "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that his current right knee disability is related to an injury sustained while he was in active service. Specifically, the Veteran has reported that he was involved in a motorcycle accident while in active service and that he sustained a right knee injury at that time. Alternatively, the Veteran reported that his right knee disability could also be the result of a 2001 training injury sustained during a period of Reserve service. A review of the STRs of record shows that in October 1977, the Veteran was treated at St. Mary's Medical Center for a knee injury. The exact specifics regarding the way in which the injury was sustained are not of record. The Veteran was diagnosed with right knee contusion at that time and referred to the Naval Hospital for further treatment. There is no record of continued treatment at that time. In March 1978, the Veteran was seen for treatment following a motorcycle accident. The Veteran was diagnosed with a right thigh contusion at that time. There was no diagnosis of a right knee disability made at the time of the documented motorcycle accident in active service. In August 1983, the Veteran was afforded a separation examination. There is no indication from the examination report that the Veteran reported a knee injury at that time and the Veteran's lower extremities were found to be clinically normal upon examination. As noted above, the Veteran also had service in the Reserves. A review of the Reserve treatment records on file shows that the Veteran was afforded a Reserve enlistment examination in February 1985. A review of the examination report is negative for any indication that the Veteran had a right knee disability at that time and the Veteran's lower extremities were found to be clinically normal upon examination. The Veteran was afforded another Reserve enlistment examination in October 1990. There is no indication from the examination report that the Veteran reported any knee problems at that time and the Veteran's lower extremities were found to be clinically normal upon examination. The Veteran was afforded periodic/annual Reserve examinations in August 1992, January 1997, and January 2002. There is no indication from the examination reports that the Veteran reported knee problems at any of those examinations and there is no indication of clinical findings of a right knee disability at the time of those examinations. In August 1993, August 1994, August 1995, November 1996, December 1997, November 1998, December 1999, November 2000, November 2001, and December 2002 the Veteran completed Annual Certificates of Physical Condition. At the time of completion of each certificate, the Veteran was directed to report any injury, illness, or disability that could affect his ability to perform his duty. There is no indication from any of the certificates that the Veteran reported a right knee injury. The Veteran routinely reported other illnesses or injuries for which he received treatment, but failed to mention a right knee disability at any time during this 10 year period. A review of the post-service medical evidence of record shows that in February 1986, the Veteran was seen at the Kearney Clinic for complaints of right knee pain after working with carpet. X-rays of the Veteran's right knee were negative at that time, but there was tenderness over the medial side of the right knee at the upper medial collateral ligament. The Veteran was provided a knee brace and prescribed Motrin for treatment. There was no diagnosis of a right knee disability made at that time and there is no record indicating that the Veteran sought follow-up treatment following the February 1986 visit. A review of the record shows that the Veteran receives periodic treatment for various disabilities at a VA Medical Center. A review of the VA Medical Center treatment notes of record shows that the Veteran was seen for complaints of right knee pain in August 2001. There is no indication from this treatment note as to what the Veteran attributed his right knee pain and there was no diagnosis of a right knee disability made at that time. In December 2001, the Veteran was afforded a right knee X-ray which revealed mild narrowing of the joint space, but was otherwise negative for obvious bony abnormalities. There was no diagnosis of a right knee disability made at that time. In January 2002, the Veteran was afforded a magnetic resonance imaging scan (MRI) of his right knee which revealed a posterior meniscal tear. In May 2002, the Veteran was seen in orthopedics for evaluation of his right knee. At that time, the Veteran denied a history of injury to the knee, but did note that he had sustained a soft tissue right knee injury during his childhood. He reported that he had been experiencing giving-way and weakness in his right knee for the past year. Based on the history provided by the Veteran and a review of the January 2002 MRI report, the examiner diagnosed a posterior medial meniscal tear in the right knee. There is no indication from the VA Medical Center treatment notes of record that the Veteran's current right knee disability is in any way related to his active service. In November 2009, the Veteran was afforded a VA examination. At that time, the Veteran reported that his right knee disability may have had its onset in 2001 while he was doing drills as part of his Reserve duty. Specifically, the Veteran reported that he remembered hearing a "pop" and feeling discomfort in his right knee during a physical training exercise. The examiner diagnosed right knee internal derangement with degenerative joint disease. The examiner opined that it was at least as likely as not that the Veteran's right knee disability was injured as described by the Veteran. However, the examiner did note that there was no documentation with regard to any specific injury during active service or during his Reserve service. Further, the examiner noted that while it had been reported that the Veteran sustained an injury to his right knee during childhood and the Veteran did actually have a scar on his right knee from such an injury; there was no evidence that the Veteran had any residual right knee symptoms, other than the scar, at the time of his entry into active service. The Board notes that medical evaluation that is merely a recitation of a veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995); Reonal and LeShore, supra. In this case, the examiner opined that the Veteran's injury to his right knee was as likely as not to have occurred as described. However, there is absolutely no evidence of record indicating that the Veteran ever experienced a right knee injury during his 2001 Reserve service. Further, a review of the Veteran's service personnel records shows that the Veteran had active duty for training (ACDUTRA) in 2001 from March 19 to March 30. There is no record of an injury during that time and the Veteran was not seen for complaints of right knee pain until several months later, in August 2001. Therefore, the Board finds that as this opinion is based on the Veteran's unsubstantiated lay account of an injury, it cannot serve as the basis of a grant of entitlement to service connection. In August 2012, the Veteran's claims file was returned to the November 2009 VA examiner for review and an addendum opinion. At that time, the VA examiner opined that it was less likely as not that the Veteran's current right knee disability was caused or aggravated by a contusion sustained in active service. In this regard, the VA examiner noted that a review of the record showed the Veteran to have sustained a right knee contusion in October 1977, for which aftercare treatment instructions included "ice to the right knee." The examiner further noted that the 1977 treatment notes revealed evidence of a mild right knee issue that was consistent with a contusion and there was no indication from the record that the right knee injury resulted in any significant structural damage of the right knee, such as a meniscus tear. Rather, the examiner noted that it was most likely that the Veteran's right knee contusion resolved without sequale or residual. The Board notes that the Veteran is generally competent to report events in service. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. 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 weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board notes that the Veteran has reported that he injured his knee during active service and that he injured his right knee during a period of Reserve ACDUTRA. The Veteran's statements that he has experienced right knee pain ever since his 1977 motorcycle accident and subsequent knee contusion are inconsistent with the other evidence of record. In this regard, there is no record indicating that the Veteran ever sought follow-up treatment while he was in active service. Additionally, the Veteran's lower extremities were found to be clinically normal upon separation. There is no indication that the Veteran had a right knee disability at any point during his Reserve duty following his active service. The Veteran himself denied any injuries to the right knee that would affect his ability to perform his duties in the various Annual Certificates of Physical Condition of record. Further, the August 2012 VA examiner opined that the Veteran's right knee contusion in active service resolved without lasting residuals prior to his separation from active service. Additionally, the Veteran's statements that he injured his right knee during a 2001 Reserve training exercise are inconsistent with the other evidence of record. In this regard, the Veteran underwent a periodic/annual examination during his Reserve service. There is no indication from the examination report that the Veteran reported a 2001 training accident at that time. Further, there is no record of the injury and the Veteran did not seek treatment for right knee pain until 5 months after his only period of ACDUTRA in 2001. Additionally, the August 2001 report of treatment for right knee pain is absent any report of a knee injury during Reserve training. The Veteran did not actually report his alleged 2001 right knee training injury until his November 2009 VA examination, which was several years after the Veteran filed his claim of entitlement to service connection. Also, as noted, November 2001 and December 2002 Annual Certificates of Physical Condition were negative any indication that the Veteran had a right knee disability which affected his ability to perform his duties. For these reasons, the Board finds that the Veteran's statements of sustaining a lasting injury to his right knee during active service and his statements of injuring his right knee during a 2001 Reserve training exercise are simply not credible. Additionally, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the issue of whether the Veteran has a right knee disability that is related to an acute and transitory right knee contusion during active service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, there is no evidence of record indicating that the Veteran manifested right knee arthritis within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. In conclusion, the Veteran sustained an acute and transitory right knee contusion during active service which was fully resolved without lasting residual prior to his separation from active service. The Veteran was not diagnosed with a right knee disability until 2002, many years following his separation from active service. The Veteran's reports of experiencing right knee pain since his right knee contusion during active service are not credible. He has not presented credible evidence of continuity of symptomatology of arthritis since active service discharge or since the reported injury on ACDUTRA, so as to support a grant of service connection on this basis. The Veteran's reports of sustaining a right knee injury during a 2001 Reserve training exercise are not credible. The August 2012 VA examiner competently opined that the Veteran's current right knee disability was not related to his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right knee disability is not warranted. ORDER Entitlement to service connection for a right knee disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs