Citation Nr: 1312237 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 07-26 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for the residuals of a right knee injury, to include osteoarthritis. 2. Entitlement to service connection for a left knee disability, to include osteoarthritis, status post arthroplasty. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Montgomery, Alabama, RO now has jurisdiction of the Veteran's claims. In September 2010, the Board remanded the Veteran's claims. Subsequently, the case was again remanded by the Board in September 2012, at which time the Board elected to pursue additional development in conjunction with the service connection claims. A review of the file reflects that there has been substantial compliance with the actions requested in those Remands and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. A March 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In March 2013, additional evidence was added to the file which was accompanied by a waiver. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT No chronic bilateral knee disability or knee arthritis was manifested during service or during the first post-service year, and currently diagnosed bilateral knee arthritis is not shown to be causally or etiologically related to service, or any incident therein. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for residuals of a right knee injury, to include osteoarthritis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for a grant of service connection for entitlement to service connection for a left knee disability, to include osteoarthritis, status post arthroplasty, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claims in a letter dated in March 2005, wherein the Veteran was advised of the provisions relating to the VCAA. The Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. The Board further observes that the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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. Those five elements include: (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. The Veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in March 2006, after the initial adjudication of the claims in October 2005. Thereafter, the RO adjudicated the claims in a Statement of the Case (SOC) issued in August 2007, and in Supplemental SOCs issued in June 2012 and February 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issues on appeal has been obtained. The service treatment records (STRs) and post-service treatment records including private medical reports and VA records have been obtained and associated with the file. In addition lay statements have also been added to the file along with contentions and arguments provided by the Veteran and his representative. Formal findings of unavailability of records from Tripler Army Hospital and the Social Security Administration are also on file. Additional records were received from the Veteran in March 2013. The evidence consists of two separate statements from the Veteran about his claim, a billing record from Dr. D.A.M. dated in May 1994, a award letter dated in January 1995 from the Social Security Administration, (SSA), a Notice of a Dismissal for a SSA hearing dated in February 1995, an Order of Dismissal of the SSA claim dated in February 1995, a 1994 letter from the SSA regarding his SSA appeal, a service treatment note dated in November 1952, and a document indicating that the SSA records for this Veteran have been destroyed. The Board finds that this evidence is duplicative of evidence and information already of record, and the Board need not seek either a waiver for this evidence of additional review and a ruling by the RO. A second package of additional evidence, consisting of private treatment records, was also received in March 2013, which was accompanied by a waiver. VA's duty to assist also includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the appeal period, a VA examination was conducted in June 2012. The Veteran and his representative have not maintained that this examination was in any way inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Background The Veteran initially filed a claim of entitlement to service connection for a right knee disability in May 1954. The claim was denied in a subsequent September 1954 rating decision. The Veteran did not appeal this determination within one year and it became final. In February 2005, the Veteran submitted a petition to reopen his previously denied claim of entitlement to service connection for a right knee disability and filed a new claim of entitlement to service connection for a left knee disability. In September 2010, the Board reopened the Veteran's claim of entitlement to service connection for a right knee disability and remanded the claims of entitlement to service connection for a left knee disability, bilateral hearing loss, and a right knee disability (on the merits) for additional evidentiary development. Review of the STRs reveals that the Veteran was seen in November 1952, at which time it was noted that he caught his right foot beneath a locker, twisting his right knee. He complained of soreness and difficulty walking. X-ray films were negative and the Veteran was returned to duty. The May 1954 separation examination report revealed that clinical evaluation of the lower extremities was normal, with no notation of any knee problems. The file contains a March 1976 medical statement of Dr. G.B.D., who had seen the Veteran in March 1976. A history of synovitis in both knees 5 years previously was noted. A flare-up of the right knee 1 year previously was also mentioned. The doctor believed that the Veteran had inflammatory arthritis, possibly rheumatoid arthritis. X-ray films of 1989 reveal that osteoarthritic changes were seen in the left knee. Private medical records include a May 1994 entry indicating that the Veteran gave a history of bad joint pain since childhood and of knee pain since 1968. X-ray films revealed narrowed medical joint space of both knees; generalized osteoarthritis was diagnosed. Total left knee arthroplasty was performed in 2000. A VA medical record dated in 2002, reflects that the Veteran complained of arthritis of multiple joints, not specifically noted in the knees. Chronic pain/osteoarthrosis was diagnosed and a history of knee replacement was also mentioned. A VA examination of the joints, primarily relating to the right shoulder, was conducted in September 2005. On physical examination, the examiner indicated that the Veteran got in and out of a chair, and on and off the examining table, with ease. The file contains 2 lay statements from military comrades attesting to a knee injury that the Veteran sustained in September 1953 when he lost his footing on a wet deck. Both affiants indicated that the Veteran was treated at Tripler Army Hospital. In a statement provided in August 2007, the Veteran indicated that he first injured his knees in service and continued to experience problems with pain and stiffness since that time. An attempt to retrieve records from Tripler Army Medical Center was made in March 2012. The file contains a formal finding regarding the unavailability of any such records. In June 2012, a VA examination of the Veteran was conducted and the claims file was reviewed. Osteoarthritis of both knees was diagnosed, as was total knee replacement of the left knee. The history indicated that the Veteran reported injuring both knees during service when his legs were pinned to a wall by a heavy piece of metal. The examiner commented that a record to verify such injury could not be found. It was also recorded that the Veteran attested to twisting his right knee on another occasion. The examiner opined that the claimed knee conditions were less likely than not incurred in or caused by a claimed in-service injury. The examiner explained that the 1954 separation examination report reflected that the Veteran had no knee problems and that X-ray films were negative as was clinical evaluation. It was further pointed out that records of the 1970's showed that rheumatoid arthritis was diagnosed; the examiner observed that this indicated a different likely etiology of bilateral knee problems. The record reflects that the Veteran's Social Security Administration records were sought for the file, but that the records had been destroyed and were no longer available. The file does contain an indication that SSA disability benefits were approved effective from May 1994. The file contains a formal finding regarding the unavailability of SSA records, dated in February 2013. In March 2013, private medical records dated from 2000 to 2008 were added to the file which show that the Veteran received regular treatment for knee problems, diagnosed as osteoarthritis and fibromyalgia. Analysis Generally, in order to prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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. See 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. See 38 C.F.R. § 3.303(b) (2012). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection shall be granted to a veteran if the veteran served 90 days or more during a war period or after December 31, 1946, or had peacetime service on or after January 1, 1947, and conditions including: arthritis, although not otherwise established as incurred in or aggravated by service, are manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Under 38 C.F.R. § 3.303(b), the second and third Hickson elements may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) 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 v. Gober, 10 Vet. App. 488, 495-96 (1997). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). In this case, Hickson element (1), evidence of current disability has been established. Upon VA examination of 2012, diagnoses of right and left knee osteoarthritis were made. The remaining question is whether the currently claimed knee disabilities were incurred during or as a result of the Veteran's active military service, presumptively or otherwise. With regard to Hickson element (2), in-service incurrence, review of the available STRs includes a sole entry relating to a knee condition. The STRs reflect that in November 1952, the Veteran caught his right foot beneath a locker, twisting his right knee. He complained of soreness and difficulty walking. X-ray films were negative and the Veteran was returned to duty. The May 1954 separation examination report revealed that clinical evaluation of the lower extremities was normal, with no notation of any knee problems. The Board observes that the Veteran's separation physical examination report is highly probative as to his condition at the time of his release from active duty, as it was generated with the specific purpose of ascertaining his then-physical condition, as opposed to his current assertions made many decades after the service that are being proffered in an attempt to secure VA compensation benefits. See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Cf. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest in benefits may affect credibility of claimant's testimony). See generally Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Private medical evidence on file reflects that at the earliest, knee problems first manifested in the early 1970's as synovitis, and that inflammatory arthritis was initially diagnosed in the mid-1970's, 15 to 20 years after the Veteran's discharge from service. As such, arthritis was not diagnosed during service or within the first post-service year. A chronic disease need not be diagnosed during the presumptive period under 38 C.F.R. § 3.307(c), but if not, there must then be shown by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, clinical evidence reflects that it was more than a decade after service that there was any indication of arthritis. As such, service connection on a presumptive basis is not warranted. The Court of Appeals for the Federal Circuit has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between the Veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Turning to this third element, nexus evidence, the file contains two medical opinion addressing the issue of an etiological link between the Veteran's claimed knee disabilities and service. Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The 2012 opinion of a VA examiner to the effect that it was less likely that the Veteran's knee conditions began in or were etiologically related to service, was based on full review of the Veteran's clinical and lay history. The examiner's opinion was supported by his reasoning that there was no indication of any knee problems on separation in 1954, or until the 1970's, when rheumatoid arthritis (a condition indicative of a different etiology of his knee problems) was diagnosed. That reasoning is consistent with the clinical evidence which establishes that arthritis was not shown in service, or initially shown until more than a decade after the Veteran's discharge from service. Hence, the negative opinion provided by the VA examiner is found to be of high probative value in this case, as it was made based upon consideration of a comprehensive historical record and claims file review, and is supported persuasive and logical rationale based on an accurate factual history. The Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). With respect to lay evidence, the Board observes that the Veteran asserts that his knees have been symptomatic since service. In addition lay statements to the effect that the Veteran sustained a knee injury in 1953 have been presented by service comrades. The Veteran and his military comrades are generally considered competent to provide such accounts. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). However, the fact remains that even if the Veteran sustained knee injuries in 1952 and 1953; upon separation in 1954 there was no evidence of any chronic symptomatology or knee disability; in contrast the Veteran's lay statements provided in 2007 to the effect that he had experienced chronic and continuous knee symptomatology since service. The fact that post-service knee symptoms did not materialize until a least a decade after service and that a private medical of May 1994 entry indicates that the Veteran gave a history of knee pain since 1968, further undermines the credibility of his lay contentions regarding chronicity and continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim on a direct basis). Accordingly, in this case, the objective clinical evidence and records are afforded more probative weight and credibility than remote assertions of the Veteran made decades after service and in conjunction with the pursuit if compensation. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (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). The Board also acknowledges the Veteran's general contentions to the effect that his claimed knee disabilities were incurred in or are otherwise related to service. Evidence of a link between current disability and service must be sufficient and, the Board must consider lay evidence, but give it whatever weight it deems it is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a Veteran's conclusory statements regarding causation were not sufficient to necessitate a VA examination in the absence of medical evidence, and that medical examinations are not to be routinely and automatically provided to all veterans in disability cases involving nexus issues). To the extent that the Veteran himself asserts he suffers from knee disabilities as a result of service, while the Veteran is generally considered competent to relate events in service and after service, and to describe the nature of his current symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Essentially, it is beyond the Veteran's competency to link his claimed knee disabilities to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining 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). Essentially, as the weight of the evidence is against a finding that the Veteran's currently claimed knee disabilities were incurred in service or during the first post-service year, or are otherwise etiologically is related to service, the preponderance of the evidence is against this service connection claims. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claims. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Entitlement to service connection for residuals of a right knee injury, to include osteoarthritis, is denied. Entitlement to service connection for a left knee disability, to include osteoarthritis, status post arthroplasty, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs