Citation Nr: 1313890 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 11-18 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to January 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript is of record and has been reviewed. In November 2012, the Board reopened the Veteran's petitions to reopen and remanded the matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the November 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 1. The Veteran's current right knee disability did not have onset in service nor was it caused by or otherwise etiologically related to his active military service. 2. The Veteran's current left knee disability did not have onset in service nor was it caused by or otherwise etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Here, the Veteran has been diagnosed with osteoarthritis in both knees. Arthritis is listed as a chronic disease under 38 C.F.R. § 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). With regard to the issue of secondary service connection, the Board notes that while this appeal was pending, VA amended 38 C.F.R. § 3.310 , the regulation concerning secondary service connection. The intent of the amendment is to conform to the regulation in Allen v. Brown, 7 Vet. App. 439 (1995), the Court decision that clarified the circumstances under which a Veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. See 71 Fed. Reg. 52,744 (September 7, 2006). In this regard, 38 C.F.R. § 3.310 was changed to note that aggravation will not be conceded unless the baseline level of severity, of the non-service connected disability, is established by medical evidence. The level of aggravation will be determined by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. That revised regulation, as noted above, implemented the holding in Allen for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See Allen at 448; 71 Fed. Reg. 52744 (2011). The Veteran is seeking entitlement to service connection for disabilities of the right and left knee. As an initial matter, the Board notes that VA treatment records show a current diagnosis of osteoarthritis in both knees. See, e.g., VA C & P Examination (January 30, 2013). Accordingly, at issue is whether the Veteran's current bilateral knee disability had onset in service or was caused by or otherwise etiologically related to his active military service. At his August 2012 Travel Board hearing, the Veteran testified that during service, he injured both of his knees while playing football for the Marine Corps at Camp Lejuene in 1951. He said that the injury to his knees caused him to be carried off of the field. He also recalled instances where he would jump into a hole because of an incoming grenade. He also stated that he would jump off of a bulldozer after the noise of unexpected incoming fire and recounted falling off the bulldozer after a fellow service member told him that incoming fire bounced behind him. The Veteran testified that after service he noticed his knees becoming progressively worse. Significantly, the Veteran is competent to report that he injured his knees in service and experienced pain as a result. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board notes that the Veteran's service treatment records are negative for any complaints of or treatment for knee pain or injury. The only injury noted during his period of service is a swollen ankle in July 1953 which was treated with a soak and wrapping with ace bandages. At his discharge examination in December 1953, the Veteran's lower extremities were found to be within normal limits and no knee disability was noted at that time. Post-service, there is no evidence of complaints of or treatment for knee pain or disability for almost forty years after separation from service. The earliest post-service evidence of a knee disability is a September 2000 VA treatment note. This note records that the Veteran presented with bilateral knee pain and stiffness of approximately one year duration that was progressively worsening. See VA Nurse Practitioner Episodic Note (September 1, 2000). A September 2001 VA treatment note documents complaints of bilateral knee pain, left greater than right, of approximately one and a half years duration which have been aggravated by a recent twisting injury to the left knee. The note states that the Veteran "does not remember any trauma in the past, but used to play racquetball 6d/wk and lots of football during service. Has not played since about 55yrs of age. Multiple knee ligament injuries in the past which never were operated on." See VA SACC-Ambulatory Care Clinic Note (September 6, 2001). December 2001 appears to be the first time the Veteran claimed he can date his knee injuries back to a football injury in the 1950s. See VA Primary Care Nurse Practitioner Note (December 27, 2001). In January 2013, the Veteran was afforded a VA examination of his bilateral knee disability. This consisted of an in-person examination, as well as a review of the Veteran's claims file by a VA staff physician. At the examination, the Veteran continued to report an injury to his right and left knees while still in service. He reported that he started going to the VA for treatment in the 1970s. The examiner diagnosed the Veteran with bilateral knee osteoarthritis. She concluded that this disability was less likely incurred in or caused by the claimed in service injury. The examiner noted that no injury to the Veteran's knees is noted in service and there was no indication of any knee abnormalities on his separation examination in December 1953. She also noted that although the Veteran has claimed that he received care within the VA system since his discharge for his knee disabilities, the earliest evidence of treatment for a bilateral knee condition is in September 2000, at which time the Veteran reported he first noticed the knee pain one year prior to his presentation. The examiner stated, "based on the available evidence, there is no indication the Veteran suffered a knee injury while in service that continued until now. Additionally, given the time that passed from his discharge to presentation, it is more likely that he has knee pain related to age related degenerative changes than to an injury while in service." Based on all the above evidence, the Board concludes that entitlement to service connection for right and left knee disabilities must be denied. As noted above, there is no evidence of any knee condition in service or for approximately forty years after service. Further, to the extent that the Veteran argues that his right knee is secondary to his left knee must fail as a matter of law, as service connection has not been established for his left knee disability. While the Veteran has presented lay testimony of both an in-service injury to his knees and continuity of symptomotology and is competent to do so, for the reasons discussed below, the Board finds that the Veteran's testimony is not credible. While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous medical records, silence in a medical record can sometimes be relied upon as contradictory evidence; specifically, the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). For this negative inference to be made, the Board must make two findings: first, that the record being evaluated is complete in relevant part; and, second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. In the instant case, the Board has no difficulty finding that the Veteran's service treatment records are complete, as they include entrance and discharge physicals, dental records, and treatment notes. Additionally, the Board finds that the injury the Veteran has described would likely be recorded in his service treatment records, since the Veteran claimed at his Travel Board hearing that his alleged in-service knee injury was severe enough that he had to be carried off the field and his service treatment records record treatment for the relatively minor complaint of a swollen ankle. Furthermore, the Board notes that it does not rely solely on the absence of any documented injury in service in determining that the Veteran's testimony is not credible. As detailed above, the Veteran received treatment from VA in September 2000 and September 2001, and on those occasions described his bilateral knee disability of approximately one to one and a half years duration, contradicting his current assertions that his bilateral knee condition had onset in service. At his September 2001 examination, the Veteran described a long history of demanding physical activity including playing racquet ball six day a week until he was in his fifties. He also reported multiple knee ligament injuries in the past, but never specified when those injuries occurred. Significantly it appears that the Veteran did not attribute his current bilateral knee problems to an in-service injury until after he file his first claim for VA benefits in late September 2001. The Board notes that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Here, the fact that the Veteran began describing an in-service injury to his knees that has bothered him since service at the time he filed a claim for service connection for a left knee disability when he had previously never described any in-service injury and indicated his disability was of relatively recent onset raises serious concerns about the Veteran's credibility. Thus, in this case, the Board finds the contemporaneous medical evidence more probative than the Veteran's reported medical history regarding the onset of current disability. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Finally, even if the Board were to assume, solely for the sake of argument, that the Veteran did have some kind of injury to his knees in service, the preponderance of the evidence is against a finding that this injury approximately fifty years ago is related to the Veteran's current bilateral knee disability. The Veteran's December 1953 discharge examination showed no evidence of any knee disability, suggesting any in-service injury was acute rather than chronic in nature, and post-service the earliest evidence of a knee disability is almost four decades after service. The VA physician who examined the Veteran in January 2013 concluded that the Veteran's current bilateral knee osteoarthritis is less likely than not incurred in service or related to an in-service injury. Her conclusion, based on an examination of the Veteran, as well as a review of all the evidence, was that the Veteran was most likely suffering from age-related degenerative changes, rather than residuals of an in-service injury. To the extent the Veteran has attempted to attribute his current bilateral knee disability to an alleged in service injury, or the right knee disability to the left knee disability (through causation or aggravation), he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran's bilateral knee osteoarthritis is due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Furthermore, the Veteran has a complicated medical history with evidence of multiple past injuries to his knees and long term post-service participation in physically demanding activities. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board places greater weight on the opinion of the VA examiner who relied on her medical training and experience, as well as a review of all the evidence of record, in determining that the Veteran's current bilateral knee disability is not related to service. For all the above reasons, entitlement to service connection for a right knee disability and entitlement to service connection for a left knee disability are denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in April 2009. This letter informed the Veteran of what evidence was required to substantiate his service connection claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran was provided an opportunity to set forth his contentions during the August 2012 Travel Board hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded a VA medical examination in January 2013. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs