Citation Nr: 1315296 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-30 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Subsequent to certification of his appeal to the Board, additional medical documentation was associated with the Veteran's claims file. In March 2013, he waived Agency of Original Jurisdiction (AOJ) review of this evidence. FINDINGS OF FACT 1. The Veteran's service treatment records show treatment for a contusion to the right quadriceps muscle in October 1984, but there is no competent and credible evidence reflecting a right knee disability during service, and the most probative evidence fails to link his current right knee strain to his 1984 muscle injury in service. 2. The most probative evidence indicates the Veteran's currently diagnosed right knee disability is not related to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A December 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The Veteran's service treatment records show treatment for a severe contusion to the right quadriceps muscle in October 1984. On physical examination, range of motion of the right knee was reduced secondary to swelling above the knee; the assessment was bone bruise/joint damage, and the examining medical officer put the Veteran on light duty for 2 weeks, despite evidence that within days the contusion was healing well with no complications. The service treatment records do not reflect that he subsequently reported experiencing right knee pain or other symptoms or sustaining an injury specifically to the right knee, and do not show that a right knee disability was diagnosed during service. His May 1985, April 1991 and October 1998 reports of medical history specifically notes his denial that he currently or previously had experienced a "trick" or locked knee; his March 2001 report of medical history, upon retirement, noted an endorsement of a "trick" or locked knee, but the examining physician clarified that he had been treated for a left knee Baker's cyst in 1995, with no current problems. After service, the Veteran underwent a December 2008 fee-based examination that was primarily focused on his left knee and lumbar spine disabilities. However, that examination report noted that the clinical findings of the right knee were normal. At the August 2009 VA examination, the Veteran reiterated the history of his 1984 right quadriceps contusion, and reported that he began to experience right knee pain in approximately 1995, six years prior to his service separation, which has continued to the present time. He began wearing a right knee brace in December 2008, and now wears it constantly, as he periodically experiences giving way of that knee. The examiner noted that a February 2009 right knee magnetic resonant imaging test (MRI) showed laxity of the posterior cruciate ligament (PCL) with evidence to suggest a chronic strain of that ligament, as well as an osteochrondromal lesion in the posterior lateral femoral condyle that may have occurred as a result of remote injury. The examiner diagnosed right PCL strain. The record does not establish that the Veteran's right knee disability is related directly to his military service or to a service-connected disability. The August 2009 VA examiner noted the 1984 right quadriceps injury as documented in the service treatment records, as well as the Veteran's report that he began to experience right knee pain in 1995. However, the examiner found that it would be difficult to relate the right knee symptomatology the Veteran had to the 1984 injury. The examiner noted the Veteran appeared to be able to resume full duty responsibilities within a short period of time after the 1984 injury, and have a period of more than 10 years before the onset of right knee pain. The Board acknowledges that the Veteran reported to the VA examiner that his right knee pain began in 1995, during his period of service. However, the Board finds such assertion is not credible. The Veteran's report that he experienced right knee pain beginning in 1995 is inconsistent with his denial of knee symptomatology in his October 1998 report of medical history. Although he acknowledged knee symptomatology on his and March 2001 report of medical history, it was his left knee which was specifically identified as being affected, not his right. See Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (concluding that the Board may reject statements of a veteran if rebutted by the overall weight of the evidence). The Board further finds persuasive the Veteran's original application for compensation filed in August 2005, wherein he reported multiple disabilities but made no mention of his right knee. Indeed, on that application he noted he suffered from a left knee disability that began in 1995. It was not until 2008 that he claimed service connection for a right knee disability. Moreover, the VA examiner noted the Veteran was a very poor historian, when obtaining the history concerning the right knee disability. In light of the inconsistent statements of the Veteran made during service versus those currently being made for purposes of his claim for benefits, the Board finds the assertion of continued right knee disability since 1995 is not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). Thus, any medical opinion based upon the assertion of in-service right knee disability beginning in 1995 has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). Further, the examiner concluded that the right knee disability was less likely as not caused by or related to the Veteran's left knee condition. The examiner noted that because a significant difficulty with gait due to the left knee was not reported by the Veteran or documented in his records, the examiner found no evidence to suggest that an abnormality of gait caused by the service-connected left knee disability resulted in the currently diagnosed right knee strain. The examiner concluded that he was unable to relate the current symptoms in the right knee to the Veteran's left knee disability. The examiner's opinions that the Veteran's current right knee strain is not likely related to the 1984 muscle contusion or related to the left knee disability were rendered following review of the claims file and examination of the Veteran, wherein the examiner considered the Veteran's reported history. There is no medical opinion to the contrary. Further, the Veteran's assertions that there is such a relationship have been considered, but the record does not establish that he has the medical training or other background to provide medical opinions, as opposed to those statements of lay observation already considered. Compare Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), to Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that threshold considerations of medical opinions' probative value include whether the person opining is suitably qualified). In sum, the competent and credible evidence does not reflect that the Veteran suffered from a right knee disability in service, and the most probative evidence indicates the Veteran's current right knee strain is not related to the in-service right quadriceps contusion or service-connected left knee disability. Accordingly, the preponderance of the evidence is against the claim, and service connection for a right knee disability is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a right knee disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs