Citation Nr: 1311965 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-03 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral knee disorder. 2. Entitlement to service connection for right ankle disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from December 1966 to May 1994. These matters come before the Board of Veterans' Appeals (BVA or Board) from a September 2006 RO decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2012, the Veteran testified during a Board hearing in San Antonio, Texas, before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. This case was previously before the Board in October 2012, wherein it was remanded for additional VA examinations and to obtain VA treatment records. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the remand, as the Veteran was afforded VA examinations and the requested VA treatment records were obtained. As such, an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during service. 2. The Veteran did not sustain a disease or injury of the knees during service. 3. The Veteran does not have a current bilateral knee disability. 4. The Veteran did not sustain a disease or injury of the right ankle during service. 5. The Veteran does not have a current right ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for a right ankle disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (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. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in September 2005, February 2006, and March 2006, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's complete service treatment records from his entire period of active duty service are unavailable. Correspondence dated in July 2006 shows the National Personnel Records Center indicated the records are unavailable. In appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). In July 2006, the Veteran was informed the service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran subsequently indicated he had no records to submit. Nonetheless, the claims the claims file contains some of the Veteran's service treatment records, as well as reports of private and VA post-service treatment and the Veteran's own statements in support of his claims. The Veteran was examined by VA in connection with his claims in 2012. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the issues on appeal. The examination report contains all the findings needed to evaluate the disability, including history and clinical evaluation. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by a veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). 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. The Veteran has not been diagnosed with a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claimed disabilities. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence does not reflect a diagnosis of arthritis. The Veteran's claimed bilateral knee disorder and right ankle disorder are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to those disabilities. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis of Service Connection The Veteran asserts that he injured his knees as a result of participating in parachute jumps and/or as a result of a motor vehicle accident, when he was hit by a truck while riding his bicycle. The Veteran asserts that he has a right ankle disorder as a result of playing racquetball during service. The Veteran alleges symptoms of pain since service. The Board finds that the Veteran engaged in combat with the enemy. Service personnel records indicate that he served in Vietnam and was awarded a Combat Medic Badge. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board reiterates that, for the evidentiary presumption regarding combat to apply, injuries must be consistent with the circumstances of combat with the enemy; it is not enough to show combat exposure. As noted earlier, however, the Veteran does not allege that his bilateral knee disorder and right ankle disorder are due to combat. Consequently, while the Veteran engaged in combat during service, the evidentiary presumption of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) does not apply. See VAOPGCPREC 12-99. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease of the knees or right ankle during service, and that the Veteran does not currently have a bilateral knee disability or a right ankle disability. The evidence also shows that the Veteran did not experience symptoms of a bilateral knee disorder or a right ankle disorder after service. In this case, the service treatment records show no indications of injury, or of complaints, findings, diagnoses, or treatment related to a left or right knee disorder or a right ankle disorder. See 38 C.F.R. § 3.303(a). For example, a February 1987 Report of Medical History during service and contemporaneous Report of Medical Examination showed no complaints related to the Veteran's knees and ankles, and clinical examination was normal. While the service treatment records are not complete, the February 1987 reports of medical history and examination are of significant probative value because they reflect the Veteran's own history and clinical examination during service at a time subsequent to the claimed in-service injuries, so tend to show no residuals of a claimed injury, and an absence of subsequent complaints, findings, or indications of disability during service. Likewise, Reports of Medical Examination in August 1976 and December 1979 indicate that clinical evaluation of the Veteran's knees and ankles was normal. This evidence reflecting the Veteran's own denial of relevant symptomatology subsequent to the now claimed injuries during service and clinical findings suggestive of no injury or residuals of injury is significant, as the Veteran testified at the Board hearing before the undersigned that the notation in his available service treatment records referencing a history of broken bones in 1979 referred to a 1976 injury to the right ankle, wherein he tore ligaments and tendons. (see hearing transcript, p. 16, 24). The Board acknowledges and has considered VA's heightened duty to assist where not all of the Veteran's service treatment records are available. In this case, the Board has not made the findings of no in-service injury or disease in service based on an absence of treatment records, but has relied instead on the affirmative evidence that is in the record, namely the Veteran's own in-service history and clinical examination findings, which indicate no history or findings suggestive of injury or disease. The heightened duty to assist does not provide for a presumption of service connection or otherwise lower the threshold for allowance of a claim; there must still be evidence of in-service injury or disease, competent evidence of current disability, and medical nexus evidence causally relating the current disability at issue to service. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board finds that the weight of the evidence demonstrates that the Veteran does not have current disabilities of either knee or the right ankle, including arthritis. According to the Veteran's testimony and statements in support of his claims, he has torn ankle ligaments and tendons, and asserts that his bilateral knee pain is a disability. Although private and VA treatment records show that he was treated for complaints of bilateral knee pain and right ankle pain, the Veteran has not been diagnosed with a bilateral knee disability or a right ankle disability; x-rays and examination were normal upon VA examination in 2008 and 2012. The Veteran is competent to report certain symptoms, such as pain, of the relevant joints; however, the Board finds that his assertions that he currently has knee and right ankle disabilities is outweighed by more specific medical assessment that is based on history and specific clinical testing, which shows no current disability. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (providing that the Board must weigh competent lay evidence against the other evidence of record in making its determinations regarding the existence of service connection). Thus, the weight of the competent evidence demonstrates no current disabilities of the knees or ankle. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"). The Veteran's contentions at the 2012 hearing before the undersigned, as well as in statements to the December 2012 VA examiner, that he has a bilateral knee disorder and right ankle disorder related to his service are also not credible because his report is inconsistent with the contemporaneous service treatment record evidence, the absence of complaints, treatment, or diagnoses after service, and the Veteran's own histories made for treatment purposes prior to filing a claim for VA compensation. VA treatment records for the period of November 2006 through November 2012 do not show complaints or treatment for the knees or right ankle; there are no related complaints, treatment, or diagnoses, and there is no evidence demonstrating that he sought treatment for his claimed bilateral knee disorder and right ankle disorder following service. Until he filed the claim for VA compensation, the Veteran did not assert an association or make any complaints related to his claimed bilateral knee disorder or right ankle disorder, nor did he suggest such complaints were related to his service. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); see also Cartright, 2 Vet. App. at 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board notes that the Veteran sought VA treatment, beginning in 2006, for unrelated disorders, such as tinnitus and pulmonary function, without making any assertions of symptoms in service or since service regarding the claimed disabilities. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Similarly, the evidence does not indicate that the Veteran had a related bilateral knee disorder or a right ankle disorder during or after service, including within a year of discharge from service. In this regard, there is no credible evidence of complaints, treatment or diagnoses related to his claimed disabilities until 2012, other than his statements related to his claims for service connection. For these reasons, the Board finds that the Veteran's recent statements for compensation purposes, such as those at his 2008 and 2012 VA examinations, regarding symptoms of knee and right ankle disorder, including since service, are outweighed by the other, more contemporaneous lay and medical evidence of record, and are not credible. See Caluza at 511 (1995); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). The record shows that the Veteran has not been diagnosed with degenerative changes (arthritis) of the knees or right ankle. Thus, the provisions of 38 C.F.R. § 3.303(b) do not apply. See Walker, supra. To substantiate a claim of presumptive service connection for such disability, there must be evidence that arthritis was manifested to a compensable degree (10 percent) in the first post-service year. A thorough review of the record reflects that the Veteran did not have arthritis of the knees or right ankle in the first post-service year; the Veteran's 2008 and 2012 x-rays did not show any degenerative changes of the knees and ankles. Notably, as a layperson, he is competent to relate some symptoms that may be associated with arthritis, such as pain and joint stiffness, but he is not competent to diagnose arthritis because is an insidious process identified by diagnostic testing, such as X-ray and/or MRI, and is not diagnosable on the symptom of pain alone, although joint pain may be a factor that is considered in rendering the diagnosis. While a May 2012 private treatment record indicates that the Veteran had degenerative joint disease of the knees and right ankle, the radiology report from that provider is not of record. Nevertheless, the Board assigns greater probative value to the September 2008 and December 2012 VA examination reports, which assessed that the Veteran did not have knee or right ankle disabilities, because the VA examiners undertook a review of the Veteran's history and claims file, as well as completed a full physical examination, specifically including x-rays, and provide a rationale for the opinions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning, and threshold considerations include whether the person opining is suitably qualified and sufficiently informed). The September 2008 and December 2012 x-rays show that the Veteran did not have degenerative joint disease of the knees and right ankle; x-rays and physical examination of his knees and right ankle were normal. See Jandreau, 492 at 1377. Given that the evidence shows no arthritis within the first post-service year, to any degree, service connection for a bilateral knee disorder or a right ankle disorder on a presumptive basis for arthritis as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.309(a) is not warranted. Although there are indications that the Veteran has complaints of knee pain and right ankle pain following service, the weight of the evidence demonstrates that there is no current bilateral knee disability and no current right ankle disability. See Brammer, supra ("In the absence of proof of present disability there can be no valid claim."). This case is distinguishable from McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), because the weight of the evidence demonstrates that the Veteran has not had, during any time during the pendency of his claims, a bilateral knee or right ankle disability. For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has a bilateral knee disorder or a right ankle disorder; therefore, the claims for service connection of these disabilities must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral knee disorder is denied. Service connection for a right ankle disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs